137 P. 755 | Or. | 1914
delivered tbe opinion of tbe court.
Tbe defendant is a corporation, and engaged in tbe operation of a paper-mill and in tbe manufacture of pulp and paper in Clackamas County, and its principal office is at Oregon City. The plaintiff is a Russian, and be bad been in this, country only about two years and three months at tbe time of tbe injury.
Prior to January 2, 1912, tbe plaintiff had worked for the defendant at its said mill about three months. Only about one half of that time be bad been engaged
On January 2, 1912, the plaintiff was in the employ of the defendant and was working'for it in that part of the defendant’s said mill known as the chipper and barker room, and, in the course of his employment, it was his duty to operate two machines in said chipper and barker room. These machines were known among the employees of the defendant’s said mill as a barker, and a cut-off saw. The said barker and chipper room was provided by the defendant with certain barker and chipping machinery, together with á cut-off saw, which was propelled by certain power, conveyed to said machines by belts, attached to said machines, apd extending upward to certain revolving pulleys and shafts. Said pulleys and shafts were located about 18 feet above the main floor upon which said barker and chipper machine and saws were located; and, in order to stop the said barker and chipper machines and saw, it was necessary for the employees of the defendant to ascend from said main floor to an upper deck or platform composed of certain boards, a large part of which were loose, and to throw the said belts off from the said pulleys on said main shafts by means of the hands or the use of a stick of wood.
After stating the facts as set out supra, the complaint alleges: ‘ ‘ That it was the duty of said defendant to provide safe appliances for the purpose of adjusting said belts, and for the purpose of throwing off the belts from said revolving pulleys, so that the employees of said defendant would not be compelled to throw off the belts from revolving pulleys with their
The plaintiff was 34 years old when he was so injured and was earning $2 per day. He claims that he was wholly incapacitated to perform labor, and that in the future he will be obliged to work for much less than he would have been able to earn but for said injury. He claims damages in the sum of $10,000.
The defendant admitted that it is a corporation and engaged in the manufacture of paper, that plaintiff was employed by it on January 2, 1912, and that the
After the plaintiff’s evidence in chief was in, the defendant filed a motion for a judgment of nonsuit on the ground that there was not sufficient evidence to be submitted to the jury, etc. This motion was overruled. When all the evidence was in, the defendant moved the court to instruct the jury to return a verdict for the defendant. This motion also was denied.
The defendant contends that the trial court erred in not allowing his motion for a judgment of nonsuit or for an instructed verdict. There are no other assignments of error.
We can give only a brief summary of the important portions of the plaintiff’s evidence. The plaintiff’s
The plaintiff testified in substance: That he was working for the defendant at its paper-mill on January 2, 1912, and had been working there three months. That he worked about six weeks loading cordwood from cars, and the latter six weeks he worked in the chipper and barker room. That on January 2, 1912, about 5:25 o’clock P. M., the foreman of the room said .to the plaintiff and Louie Eich, “You go and take off the belts”; and the plaintiff went and climbed the ladder, about 13 or 14 feet. When he climbed the ladder, there were some boards lying lengthwise (forming the “platform” on which he was when throwing off the belt), and he had to go around under the shaft and pulley, the big wheel, to get the belt. The boards on the platform were loose. He had to watch, so that he would not fall down. The belt caught him by the hand and threw him in, and he did not remember any more. When it caught his hand and broke his arm, he did not remember any more. That Louie Eich called for hélp and took him down. That the plaintiff had taken off this belt four or five times before he was hurt. That the foreman of the barker and chipper room ordered him to go up the ladder and take off the belt. That Louie Eich was on the platform at the same time taking off another belt. That the defendant did not furnish either him or Eich any instrument or device for taking off the belts. He could not state how fast the pulleys were revolving when he attempted to take off the belts. That the pulleys never stopped, and that they could not take the belts off excepting when the pulleys were revolving. That sometimes the speed was slackened, but the belts had to be taken off when the pulleys were revolving. That no one ever showed or instructed him how to take these belts off. He had seen others take
Peter Schrotlin testified that he was working for the defendant on January 2, 1912, when the plaintiff was injured; knows defendant’s mill and the machinery in the chipper and barker room; has worked in that room and with the same machines with which plaintiff worked. In going up to take off the belts, he says the steps are about two feet from the wall, and you have to climb upon the wall, and go underneath the big wheel, and then step over the next plank and come to the shaft again, and throw off the belts there. There are three belts and pulleys there. The barker wheel was about 15 feet from the wall. They generally shut the mill down a little (when the belts are to be thrown off), and you have to take the belt in your hand and throw it off. You cannot throw the belt off when they stop altogether. They cannot shut the mill down but a little. They have to run. When the mill is slowed down to slow these pulleys, it is running other machinery in the mill. There is only one way to throw off the belt, and that is with the hands. You could not use any sticks; “but they could fix it a different way so that a fellow could throw it off without his hands, have a kind of lever or something like that, or a pulley.” No sticks were furnished with which to throw off the belts. Witness had thrown the belt off several times, but says the belts cannot be thrown off when the pulleys are just
Louie Eich, a German, was working in the same room with the plaintiff at the time of the injury and climbed up and threw off a belt at the time the plaintiff was injured. He testified in substance as follows: “He and plaintiff went up the ladder (to throw off the belts). We came out on this side (indicating), and then we had to go around the big pulley. There were two planks on that side (indicating) and two planks on this side (indicating), and we had to go around the side, and one plank crosswise. He took his belt off with his hands. There was nothing there with which to take off the belts. He used his hands. Witness is still working for the defendant. The plaintiff went up the same time that witness did to throw off belts. The foreman told them to go up. The plaintiff fell over, back in the corner. The witness and another person carried the plaintiff down (after he was hurt). That was the time when he got his arm broke. We went up together, and he (plaintiff) went on his side, and witness went on his side of the barker belt. Witness saw the plaintiff fall over back, and the belt went off. Plaintiff got off the belt and fell down back. ’ ’
Dr. Hugh S. Mount had examined the plaintiff’s injured arm several times, and he testified in substance: “That the plaintiff was badly injured. His arm and shoulder were the parts injured. His arm had been broken and was shrunken up. Certain muscles of his arm were atrophied. Paralysis had ruined part of his shoulder, and sensation in that part of his arm is gone. If he gets started just right he can lift 15 pounds, and that is all he can lift, and it hurts him to do that. ’ ’ The
It is clearly shown that the plaintiff was ordered by the foreman to climb the ladder and throw off the belt; that he obeyed the order and ascended the ladder, and, in throwing off the belt from a revolving pulley, his right arm was caught between the belt and the revolving pulley on the shaft and crushed and broken between the shoulder and the elbow, and he was permanently injured. It is also shown by the evidence for the plaintiff that the defendant did not furnish any appliance or implement whatever for throwing off the belt, and that the plaintiff had to use his hands for that purpose.
The plaintiff and two other witnesses testify positively that no appliance or implement of any kind was furnished by the defendant for throwing off belts, and that the employees used their hands for that purpose. The evidence for the plaintiff shows also that the belts could not be thrown off excepting when the machinery was running, and that, when the belts were to be thrown off, the speed of the machinery was considerably reduced but not nearly stopped.
The evidence tends strongly to show that the revolving pulleys, the belts, and wheels, and shafts were dangerous machinery. The plaintiff testified that he had no previous experience in working about machinery, and that he had been working at that work about six weeks, and that he had thrown off the belts only four or five times before he was injured. He testified also that no one had instructed him as to the proper manner of throwing off the belts, but that he had seen others do it.
In volume 9 of the Ency. of Evidence, pages 111, 112, that work says: “Incompetent evidence which is introduced without objection becomes evidence in the particular case and must be treated as any other competent evidence, not only against the party failing to object, but as against the person introducing it. When evidence has been offered for a particular purpose, and no objection is made thereto, it must be treated as competent evidence for the purpose for which it was offered.” The same volume on page 116 says: “Inadmissible conclusions or opinions of witnesses, if not properly and seasonably objected to, become evidence in the case and should be given the weight to which they are entitled.”
There was evidence showing that the plaintiff was seriously injured while working for the defendant; that he was practically without experience in working
The defendant had charge of the paper-mill and was responsible for the work that it was doing when the plaintiff was injured, and, according to the evidence,
The only question for decision here is whether there was sufficient evidence to be submitted to the jury. If there was, the motions for a nonsuit and for an instructed verdict were properly denied. In determining this question, we must base our decision on the law that applies to the case, without reference to what counsel or the court below may have considered to be the law of the ease.
In 2 Standard Proc., pages 414, 415, the rule is stated thus: “Although an appellant in his allegations of error is limited upon appeal to the grounds or reason thus alleged below, an appellate court, however, is not limited in its decision to the grounds or reason given by the lower court. Thus' an order granting a new trial may be sustained upon appeal, although upon an entirely different ground than alleged in the ¡trial court. Likewise, in further example, rulings, excluding evidence and directing a verdict, will be upheld, if sustainable on any ground, regardless of the ground or theory acted upon by the court below.”
In tbis case the counsel for tbe defendant claimed, in tbe court below, tbat tbe plaintiff’s evidence was insufficient to be submitted to tbe jury, and tbe counsel for tbe plaintiff claimed tbat there was sufficient to go to tbe jury. The court below agreed with counsel for tbe plaintiff and denied tbe defendant’s motions. Tbe question for decision here is whether tbe court below decided correctly in denying said motions, and it is immaterial what the court below or tbe counsel for tbe parties said or thought on other questions.
Tbe question here is: What is tbe law of this case, upon tbe facts contained in tbe record? Tbe fact that counsel for tbe plaintiff or tbe trial court may have said, in tbe court below, tbat tbis case is a common-law action does not preclude tbis court’s bolding tbat it is witbin tbe Employers’ Liability Act. Tbe fact tbat counsel for the plaintiff said, in tbe court below, tbat tbis is a common-law action did not estop him in tbat court, nor does it in tbis court, to contend tbat tbe decision of tbe court below, bolding tbat tbe plaintiff bad made out a prima facie case for submission to tbe jury, was correct.
Under the act referred to, it was the duty of the defendant to “use every device, care and precaution, which it is practicable to use, for the protection and safety of life and limb, limited only by the necessity for preserving the efficiency of the structure, machine, or other apparatus or device, and without regard to the additional cost of suitable material or safety appliance and devices.”
The evidence tends to show that the defendant furnished no appliances with which to throw off the belts, and that its employees had to take hold of the belts with their hands, when the belts were moving with considerable rapidity, and that the plaintiff’s arm was caught between the belt and a revolving pulley on the shaft and crushed. It is contended that the defendant should have provided a belt shifter for throwing off the belts, and that a failure to furnish some such device was negligence. One witness for the plaintiff testified, as shown, that this could have been done. This evidence on that point, with the other evidence produced by the plaintiff, was sufficient to require the case to be submitted to the jury.
Article VII, Section 3, of the Constitution provides inter alia that: “No fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict.” This provision of the Constitution is a mandate to this court which we must obey.
In Perkins v. McCullough, 36 Or. 147 (59 Pac. 182), the settled rule as to granting of judgments of nonsuit in this state is stated thus: “The rule is well settled in this state that if there be any evidence, however slight, fairly susceptible of an inference or presumption tending to establish a material allegation of the complaint (all the material allegations of the complaint), it is the duty of the court to deny the motion for a judgment of nonsuit and submit the question involved to the jury for determination.” It is unnecessary to refer to the numerous cases decided by this court sustaining the foregoing citation. We are unable to say there is no evidence in this case to support the verdict.
The evidence for the defendant disputed some of the evidence for the plaintiff; but we think that there was sufficient evidence in favor of the plaintiff to require the case to be submitted to the jury, and that there was
The judgment of the court below is affirmed.
Affirmed.