147 P. 532 | Or. | 1915
Lead Opinion
Department 1.
delivered the opinion of the court.
It is conceded by the parties that the plaintiff’s action is based upon defendant’s liability at common law. There are two assignments of error.
It is not always easy, in a particular instance, to place a finger upon a specific act, and safely say: ‘ ‘ This is the act which directly produced a given result.” In this case the successive steps are that defendant selected a certain tree to carry a cable, and stayed the same with guy wires. The decedent felled a tree which struck a guy wire, breaking the gin tree, of which a falling limb struck and killed him. If Laine had not felled the tree so that it struck the guy wire, the gin tree would not have broken, and the falling limb would not have caused a death. But, if the guy wire had not been attached to a defective tree, it may be that no accident would have happened. The falling tree striking the wire, the impact breaking the gin tree, and the falling limb killing the man, might, we think, be classed as an unbroken chain of causal events. As is said by Mr. Justice Lord, in the case of Hartvig v. Northern Pac. L. Co., 19 Or. 525 (25 Pac. 359):
“ ‘Whether the injury in a particular case was such natural and proximate result of the wrong complained of is ordinarily for the decision of the jury.’ * * It is their province to look at the facts as they transpire, and ascertain whether they are naturally and probably connected in orderly sequence with the prime cause, or disconnected by some intervening agency affecting its operation. ’ ’
Under the evidence we think that this question was properly submitted to the jury.
Affirmed. Rehearing Granted.
Rehearing
Reversed July 6, rehearing denied September 7, 1915.
On Rehearing.
(149 Pac. 1033.)
A rehearing having been granted, the former opinion was set aside and judgment of the lower court is reversed and action dismissed without prejudice.
Reversed. Rehearing Denied.
For appellant there was a brief over the name of Messrs. Crawford & Eakin, with an oral argument by Mr. Thomas H. Crawford.
For respondent there was a brief and an oral argument by Mr. Leroy Lomax.
In Banc.
delivered the opinion of the court.
Upon the rehearing in this case a question was suggested which had not been presented at the former argument herein, and this is the only matter which we shall now consider: Does the complaint state a cause of action in favor of the administrator? The sub
“That the defendant carelessly and negligently, and in disregard of the lives and safety of its employees, and particularly of the deceased, selected an old, doty, faulty and unsafe tree to attach one end of said cable wire to, and did carelessly, negligently, and in disregard of the lives and safety of its employees, and particularly of the deceased, attach and fasten one end of said cable wire to said old, doty, faulty and unsafe tree, and did carelessly and negligently, and in disregard of the lives and safety of its employees, and particularly of the deceased, attach and fasten to said old, doty, faulty and unsafe tree, two certain wires, commonly known as guy wires, which were stretched and extended out from said old, doty, faulty and unsafe tree, the other ends of said guy wires being attached' to two certain stumps, and each being stretched .to a high tension, and that said cable wire and said guy wires were of great weight, and produced much strain upon said old, doty, faulty and unsafe tree, to which said wires were so attached, and said tree and said wires were in such condition, and were so existing, at the time the deceased received his injuries and lost his life, as hereinafter complained of. That the defendant carelessly and negligently, and in disregard of the lives and safety of its employees, and particularly of the deceased, attached said cable wire and said guy wires to said old, doty, faulty and unsafe tree at*229 a point about 60 feet from the ground, and carelessly and negligently, and in disregard of the lives and safety of its employees, and particularly of the deceased, failed, neglected and omitted to top said tree above said wires; and carelessly and negligently, and in disregard of the lives and safety of its employees, and particularly of the deceased, left the top of said tree above said wires standing, which was unsafe and dangerous to the lives and safety of defendant’s employees, and particularly the deceased, in working near and above said tree.
“That defendant carelessly and negligently, and in disregard of the lives and safety of its employees, and particularly of the deceased, negligently and carelessly failed and omitted to fall, clear, and clean the timber and brush away from and about said old, doty and faulty tree, before so attaching said cable and said guy wires to said tree.
“That defendant, in disregard of the safety of its employees, particularly of the deceased, carelessly and negligently left standing, near said old; doty and faulty tree, to which said cable and guy wires were so attached, certain timber, which was standing between said guy wires and in the vicinity of and near to said old, doty and faulty tree, to which said cable and said guy wires were so attached.
“That by reason of said tree, to which said cable and said guy wires were so attached, being old, doty and faulty, and by reason of the same not being topped above where said wires were so attached, and by reason of the timber and brush in the vicinity of said tree not being cut, removed and cleared away, and by reason of the great tension of said cable and said guy wires, and the weight and strain upon the same, the said premises, and the vicinity about said old, doty and faulty tree, were at the times and dates hereinafter complained of, and at the time and date deceased received his injuries, resulting in his death, as hereinafter complained of, an extremely dangerous and unsafe place for defendant’s employees, and particularly the deceased, to engage in their work of cutting and*230 falling the timber about said premises, and near said old, doty and faulty tree, as hereinafter particularly alleged.
“That on or about the 12th day of September, 1913, the deceased was employed by the defendant to cut down and fall timber for the defendant in the mountains, to be transported to its said sawmill and lumbering plant, and on the 14th day of September, 19.13, while deceased was so employed, by the defendant, the defendant, in disregard of the lives and safety of its employees, and particularly of the deceased, carelessly and negligently instructed and directed the deceased to go to the vicinity of said old, doty and faulty tree, to which said cable and said guy wires were so attached, and to the said extremely dangerous and unsafe premises, as hereinabove alleged, and carelessly and negligently, and in disregard of the lives and safety of its employees, and particularly of the deceased, did instruct and direct said deceased to cut down and fall one large green tree, which was standing between said guy wires, and at a distance about 40 feet from said old, doty and faulty tree, to which said cable and said guy wires were so attached, as hereinabove alleged, and that said guy wires were only about 20 feet apart at the place where said tree, which deceased was so instructed and directed to fall, was standing.
“That deceased did, in pursuance to said instructions and directions, so given him by the defendant, proceed to and did cut and fall said green tree so standing between said guy wires, and at said distance of about 40 feet from said old, doty and faulty tree, to which said cable and guy wires were so attached, and did cut and fall the same in a careful, cautious and prudent manner, directing and falling the same parallel with said guy wires and away from said old, doty and faulty tree, to which said cable and said guy wires were so attached. That said tree, so cut and fallen by the deceased, had limbs projecting out from the trunk of said tree, and that, in the falling of said tree, said limbs, without any fault or carelessness upon the part of the deceased, struck one of said guy wires, pro*231 ducing weight and strain upon said wires, and said old, doty and faulty tree, to which said cable and guy wires were so attached, and thereby and by reason of which said old, doty and faulty tree was broken, and the top thereof broken, and did fall and strike the deceased upon the head and body of said deceased, mortally wounding and injuring him, whereby, and by reason of which said mortal wounds and injuries, said deceased thereafter, and in the evening of the 14th day of September, 1913, died. That said mortal wounds, injuries and the death of said deceased, which resulted therefrom, were caused and produced by and through the negligence and carelessness and negligence and omission of the defendant, as hereinabove alleged.
“That defendant, by the exercise of ordinary care and prudence, could have known, and did know, that said premises above described were extremely dangerous and hazardous to the lives and safety of its employees, and particularly the deceased, who was sent to work near and about said premises, and by the exercise of ordinary care and prudence could have known, and did know, that said old, doty and faulty tree, to which said cable and guy wires were so attached, was extremely dangerous and unfit to so use, and to so attach said cable and guy wires to, and was extremely dangerous and hazardous to the lives and safety of the employees of the defendant, and particularly the deceased, to be left so standing without being topped, and could have known, by the exercise of ordinary care and prudence, and did know, that it was extremely dangerous and hazardous to lives and safety of its employees, and particularly the deceased, to leave said premises in and about said old, doty and faulty tree, and said cable and said guy wires, without the timber and brush having been, prior thereto, fallen and cleared away, and could have, by exercise of ordinary care and prudence, known, and did know, that the place where said deceased was so instructed and directed to work, as above alleged, and where said deceased so received his said mortal wounds and injuries, as above alleged, which resulted in the death of said deceased, was an*232 extremely hazardous, dangerous, and unsafe place for defendant’s employees, and particularly the deceased, to work.
“That the defendant was the owner and had charge of the said donkey-engine, said cable wire, said guy wires, and said old, doty and faulty tree, and the entire structure, apparatus, and device so used by said defendant in moving, hauling and transporting its said logs and timber to its said sawmill and lumbering plant, and had charge of and was responsible for the said work in which deceased was engaged at the time he sustained said injuries, so causing his death, and had charge of and was responsible for the premises and place where said cable wire, said guy wires, and said old, doty and faulty tree were situated, and directed deceased to and was responsible for deceased’s working at. said place, near said cable wire and said guy wires, and said old, doty and faulty tree.
‘ ‘ That said work in which deceased was so engaged at the time he received said injuries was very hazardous and involved great risk and danger to the lives of the employees of defendant, including the deceased, and defendant failed and neglected to use such device, care and precaution which was practicable to use for the protection and safety of the lives of its employees and the protection and safety of the life of deceased.
“That said old, doty and faulty tree, to which said cable and said guy wires were so attached, could have been topped a few feet above where said wires were so attached, and the premises near said old, doty and faulty tree could have been cleared away by the defendant, which would have rendered the said place where deceased was so working when he sustained said injuries, much safer and much less dangerous to the life of deceased, and would not have impaired or in any manner detracted from the efficiency and use of said cable wires, and said guy wires, said old, doty and faulty tree, and said device and apparatus so used by defendant in moving, hauling and transporting its said logs and timber to its said sawmill and lumbering-plant, and defendant’s failure, neglect and omission*233 to use such care and take such precautions, resulted in deceased sustaining such injuries, which caused his death, as above alleged.”
“If there shall be any loss of life by reason of the neglects or failures or violations of the provisions of this act by any owner, contractor, or subcontractor, or any person liable under the provisions of this act, the widow of the person so killed, his lineal heirs or adopted children, or the husband, mother, or father, as the case may be, shall have a right of action without any limit as to the amount of damages which may be awarded”: Laws 1911, p. 17.
“When the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action at law therefor against the latter, if the former might have maintained an action, had he lived, against the latter, for an injury done by the same act or omission. Such action shall be commenced within two years after the death, and damages therein shall not exceed $7,500, and the amount recovered, if any, shall be administered as other personal property of the deceased person.”
This law was enacted by the legislature in 1862, and is a modified version of the English statute, known as Lord Campbell’s Act, adopted because of the fact that, under the common law, no recovery could be had for the death of a person by the wrongful act or omission
“The act first referred to is limited in its application to certain enumerated causes, and it would appear that an action to recover damages for the death of an employee could be maintained only by a relative of the deceased.”
It is conceded that there can be but one recovery; and therefore to hold that the one who first appeals to the courts may thereby bar the other would be to open the gates to an indecent scramble for precedence in beginning an action and would render it possible for a designing person to have himself appointed adminis
“So, also, although by the provisions of Section 27 [2 Gav. & H. St. 1862, p. 56] the action for the death of a child must be brought by the father, or in case of his death, or desertion of his family, or imprisonment, by the mother, or by the guardian for his ward, it seems clear to us that, where there was neither father, mother, nor guardian, the case, not being specially provided for, would then come within the provisions of Section 784 [page 330], and the administrator would be the proper person to sue.”
It follows from these views that the judgment of the lower court must be reversed and the action dismissed, without prejudice to the right of the one entitled under the Employers’ Liability Act to bring an action for the death of Laine.
Reversed. Dismissed Without Prejudice.