135 P. 192 | Or. | 1913
delivered the opinion of the court.
The defendant was engaged in the manufacture of lumber in Columbia County, in May and June, 1910, and prior and subsequent thereto. The defendant used a donkey-engine and the appliances that go with it in hauling logs for his mill. The plaintiff was employed by the defendant to work for him in his sawmill
The plaintiff claims: That about June 7, 1910 (it was June 3d), while he was in the employ of the defendant as “chaser,” it became his duty to follow logs that were being hauled by means of a donkey-engine, blocks, chains, cables and other contrivances along a certain trail called the “poll road,” and that after a certain chain, called the “butt chain,” had been unhitched from said sawlogs, it became his further duty to follow said butt chain back a certain distance over the trail first above mentioned, and that the plaintiff did follow the said butt chain as became his said duty. That in following the said butt chain as above alleged, it "was necessary for the plaintiff to pass within a few feet of a certain maple tree, to a branch of which was attached a block or pulley through which ran a certain cable called the “trip-line,” said trip-line being a cable about five eighths of an inch in diameter, and it was attached to a drum, caused to revolve by said donkey-engine, placed at the foot of said trail, for the purpose of letting said trip-line out, or pulling it in as the work required, and from said drum the trip-line ran away out several hundred feet into the woods, passing through a number of blocks attached to stumps and trees as anchors at various places, of which the said maple tree was one, until the said trip-line reached the head of the trail upon which this plaintiff worked as heretofore alleged, when it passed through a certain block and then followed the trail back to the donkey-engine, where it was attached to the end of a large cable called the “main line,” which was used to haul
The defendants denied the material allegations of the complaint, and pleaded, in mitigation of damages, that the plaintiff, after said accident, became intoxicated and fell, and thereby aggravated his said injuries. The defendants, also, pleaded that the plaintiff should have followed and kept within reach of the signal wire in order to give signals by the use of said wire to the engineer operating said donkey-engine and thereby control the movements of said engine, etc. They allege, also, that if he had followed said signal wire, he would not have been struck by said maple tree or injured at all and claim that his injury was the result of his own negligence.
They allege, also, that the plaintiff, in consideration of $30, paid him by one of the defendants and for other
Most of the affirmative matter in the answer of the defendant I. Gr. Wikstrom was denied by the reply, and the reply alleges that said release of the plaintiff’s claim for damages was obtained by fraud, etc. The reply denies, also, that said signaling wire was in use, and claims that it could not have been used for signaling.
The evidence showed that Frank Wikstrom, who was made a defendant, was not a partner in said mill business, and the action, as to him, was abandoned.
The substance of the defense of the defendant I. Gr. Wikstrom is that he was not guilty of negligence, that the injury to plaintiff was the result of his own negligence, that the proximate cause of the injury was the catching of said forked log in the cable, and the release of the right of action by the plaintiff.
The jury found a verdict for the plaintiff, and we are asked to set it and the judgment based on it aside for want of sufficient evidence to support them.
Article VII, Section 3 of the Constitution, inter alia, provides: “In actions at law when the value in controversy shall exceed $20, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there was no evidence to support the verdict” \ See Laws 1911, p. 7.
In Dillard v. Olalla Mining Co., 52 Or. 126 (94 Pac. 966, 96 Pac. 678), Mr. Commissioner King says: “Under the motion for nonsuit we must receive the evidence educed by the plaintiffs in the most favorable light to them, making an examination of the testimony of the defense unnecessary, however favorable to its contentions it might appear.”
In Devroe v. Portland Ry. L. & P. Co., 64 Or. 547 (131 Pac. 307), Mr. Justice Bean says: “The rule is that, if two inferences may be fairly and legitimately deduced from the evidence, one favorable and the other unfavorable to the defendant, a question is presented which calls for the opinion of the jury. Where proof of the accident is unaccompanied by proof of facts and circumstances, from which an inference of negligence may or may not be drawn, the case cannot be determined by the court as a matter of law, but must be submitted to the jury.”
In Anderson v. Northern Pac. Lum. Co., 21 Or. 283 (28 Pac. 5), the court says: “On the other hand, if there be in the judgment of the court any legal evidence tending to prove the issue, it must go to the jury for them to determine what weight shall be attached to it.”
The plaintiff’s main contention as to negligence is that the defendant was guilty of negligence in that the branch of the maple tree to which the block or pulley was attached, and which broke as stated, supra, was small, rotten and hollow, and not a fit or a proper place to which to attach said block or pulley, etc.
The evidence for the plaintiff concerning said maple branch was given by the plaintiff and two of his witnesses. Joe Nelson, a witness for the plaintiff, was a foreman of the defendant when the accident occurred. He had had experience in the logging business and is a man of intelligence. He testified that he attached the block or pulley to the branch of the maple tree by the express orders of Frank Wikstrom, the defendant’s son. The latter ranked Nelson in authority under the defendant, when present. He was a sort of vice-principal.
This maple tree had three branches of nearly equal size. The block or pulley was attached to one of these branches.
The witness Nelson testified that the block or pulley was attached to one of these branches 11 or 12 feet from the ground, and that it was attached high above the ground so that it would be out of the way of the logs that would pass under it, and that he placed it there by direction of Frank Wikstrom, and he testifies (on page 55 of evidence) that he told Wikstrom that the block or pulley thus attached would not hold with the amount of line that was out, and that 2,500 to 2,800 feet of line was out. He testifies, also, that he told him to put a line there with a guy to the tree, but that they did not have any gny-line. He says that the maple branch was about 8 inches in diameter where
Jerry La Belle, who was fireman of the donkey-engine at the time of the accident, testified that he assisted in taking the maple branch off the plaintiff, and that the plaintiff was lying in the logging trail, and he says that the branch was eight or nine inches in diameter in his judgment.
Joe Nelson (pages 98, 99) testifies that he instructed the plaintiff, when he began “chasing,” how to discharge his duties; but he says that he did not instruct him as to what path or way he should go in going out from the donkey and in doing his work.
The plaintiff was unconscious for 17 days after the accident, and does not personally know how the accident occurred. But he saw the maple branch after he left the hospital, and he says that it was a ‘ ‘ small, little rotten limb,” and that he has no recollection as to what the block or pulley was attached. The plaintiff was in the Good Samaritan Hospital between six and seven months, and' he was partially paralyzed.
The foregoing summary states as much of the evidence as to the negligence of the defendant as it is
This question as to the negligence of the defendant is confined to the attaching of said block or pulley to the branch of said maple tree.
It is the settled law that the master owes his servants the duty of exercising reasonable care to provide them with a reasonably safe place in which to work, and reasonably safe machinery and appliances with which to work, and that if he fails to perform this duty, he is guilty of negligence, and that if this negligence is the proximate cause of an injury to a servant, the master is liable to an action therefor: Geldard v. Marshall, 43 Or. 438 (73 Pac. 330); Millen v. Pacific Bridge Co., 51 Or. 538 (95 Pac. 196); Rush v. Oregon Power Co., 51 Or. 519 (95 Pac. 193); Galvinv. Brown & McCabe, 53 Or. 609 (101 Pac. 671); Roth v. North Pac. L. Co., 18 Or. 210 (22 Pac. 842).
The evidence for the plaintiff tends to prove that, while the plaintiff had had experience in working about sawmills, he had had no previous experience in “chasing,” and that he had been chasing for the defendant only a few days.
Applying the rule stated in Devroe v. Portland Ry., L. & P. Co., 64 Or. 547 (131 Pac. 304), that “where the proof of the accident is accompanied by proof of facts and circumstances, from which an inference of negligence may or may not be drawn, the ease cannot be determined by the court as a matter of law, but must he submitted to the jury,” we hold that the evidence submitted by the plaintiff in chief was sufficient to support a verdict for the plaintiff, and we cannot say affirmatively that there was no evidence to support the findings of the jury.
What is the proximate cause of an injury is one of the vexed questions of the law. When one looks into the decisions and the treatises on negligence for guidance on this question, he finds himself immediately enveloped in the mist and fog of judicial disagreements.
21 Am. & Eng. Ency. of Law (2 ed.), page 485, gives the following definition of “proximate cause”: “A proximate cause, in the law of negligence, is such a cause as operates to produce particular consequences without the intervention of any independent unforeseen cause, without which the injuries would not have occurred.”
In 2 Thompson, Negligence, page 1085, .the- author says: “When an injury is the combined result- of the negligence of the defendant, and an accident for which neither the plaintiff nor the defendant is responsible,
In 1 Shearman & Redfield, Negligence (6 ed.), referring to an intervening inevitable accident, in section 33, the author, inter alia, says: “But it must be carefully noted that the inevitable accident, in order to furnish a complete defense in such a case, must be the sole cause of the injury, and, therefore, that it is no defense, if, but for the defendant’s negligence, the plaintiff would not have been exposed to injury from such accident; while, if it contributed to any part of the resulting damage, it is only a defense in case that part of the damage can be accurately distinguished from the rest.”
In The Joseph B. Thomas (D. C.), 81 Fed. 584, the court, inter alia, says: “ * * For it is well settled that it is no defense in an action for a negligent injury that the negligence of a third person, or an inevitable accident, or an inanimate thing, contributed to cause the injury of the plaintiff, if the negligence of defendant was the efficient cause.”
In Ahern v. Oregon Telephone Co., 24 Or. 288 (33 Pac. 406, 22 L. R. A. 635), the court says: “This is based on the assumption that there intervened between the negligence of the defendant, if any there was, and the injury to the plaintiff, an independent adequate cause of the injury, namely, the wrongful acts of the electric company, which was the proximate cause of the injury. What is the proximate cause of the injury is ordinarily a question for the jury. It is only when the facts are undisputed that it becomes a question for the court.”
We find nothing in the evidence that would justify . the court in saying as a matter of law that the forked log or chunk was the proximate cause of the injury. If the defendant was guilty of negligence in fastening the pulley to the maple branch, the fact that the cable
The questions whether the defendant was guilty of' negligence, and what effect the contact of the cable with said log had in causing the accident, were questions of fact for the decision of the jury, and not questions of law for the determination of the court.
Where a release is under seal, many eases hold that the releasor cannot in an action at law avoid its effect by alleging and proving that its execution was obtained by fraud of the releasee. But this rule does not prevail in Oregon: Olston v. Oregon W. P. & Ry. Co., 52 Or. 343 (96 Pac. 1095, 97 Pac. 538, 20 L. R. A. (N. S.) 915). The release in this case was not sealed.
The defendant, in person, called on the plaintiff in November, and asked him how he was, and told him that he had come to take the plaintiff home. The plaintiff testified that the defendant said to him: “When you get out of the hospital, I want you to come down home, and I will give you a good home, tobacco, and spending money and clothes, and everything you need, if you don’t bring this case into court; please don’t bring it in, because it isn’t necessary. It was an unavoidable accident. It could not be helped. I will do exactly right with you, anything you want for me to do for you.” The plaintiff adds, “So, of course, I depended on Mr. Wikstrom at that time.”
In November, Frank Wikstrom called again on the plaintiff for his father to obtain the release, and, according to the plaintiff, told the latter, in substance, that after the second operation the plaintiff would be all right, and that it would take him only about nine weeks to get well again; that he told plaintiff that he had a good home for him and said that he had come to have a settlement with the plaintiff, because they were afraid of the new law, and they would like to have it settled. The plaintiff says that he said to Frank, “What are you going to offer me?” and that Frank replied: “It’s up to you. To tell the honest truth, you have no case; it was an unavoidable accident. If you promise to do what we want, when you get through here and come down, we will give you a
Frank Wikstrom testified that his father wanted him to go and get a contract from the plaintiff, and that he went and obtained it. He says that his father told him that he had been talking to the plaintiff about a settlement, and he says that his father spoke about it once in a while, and he says the plaintiff wanted $25 or $30 for clothes, tobacco and other necessaries. Frank says that he had a lawyer to draw the release.
The defendant says that, when he called on the plaintiff concerning a settlement, the latter informed him that he had written to some friends for information to convince him how the accident happened. The defendant says he told the plaintiff that it was an accident pure cmd simple, and that, the plaintiff said he was advised that was all that there was to it. The defendant says that the plaintiff did not seem to know much more about how the accident happened than he did, and that he was not present when it occurred. The defendant admits that he told the plaintiff, when he was negotiating for the release, that the plaintiff’s injury was caused by an accident, pure and simple, and Frank Wikstrom admits that he told him substantially the same thing. The plaintiff, however, says that Frank Wikstrom told him that it was an unavoidable accident, and that the plaintiff had no case against them.
It is impracticable to set forth all the evidence on this point. But it must be borne in mind that the
We think that there was sufficient evidence tending to show that the release was obtained by fraud to require that question to be submitted to the jury, and to support the verdict. The jury must, under the charge of the court, have found that the release was obtained by fraud. Otherwise, they would have found for the defendant. We are unable to say .that there was no evidence to support the finding of the jury. It is evident that the plaintiff acted very largely upon the representations of the defendant and his son that his injury was the result of an unavoidable accident and that he had no right of action. The defendant, in his evidence, admits that he knew that the plaintiff was very badly injured. The desire of the defendant to obtain the release before the plaintiff should leave the hospital shows that he feared the result of an action.
We hold that there was no error in submitting the question of fraud to the jury: Olston v. Oregon W. P. & Ry. Co., 52 Or. 355 (96 Pac. 1095, 97 Pac. 538, 20 L. R. A. (N. S.) 915); Foster v. University L. & S. Co., 65 Or. 46 (131 Pac. 737).
The authorities seem to be about equally divided on the question whether, in cases where releases are ob
In volume 6 of Thompson’s Commentaries on tbe Law of Negligence (section 7379), tbe author on tbis point says: “Tbe authorities are by no means harmonious on tbis question, but indeed seem to be pretty evenly divided. There is a line of cases, ‘bolding that tbe return of tbe consideration, or an offer to return it, is not a prerequisite to tbe maintenance of tbe action by tbe releasor for damages if tbe release was obtained by fraud,’ ” etc.
In 38 Cyc. 135, tbe rule as to waiver of tender is stated thus: “Similarly, a tender is waived where tbe tenderee makes any declaration which amounts to a repudiation of tbe contract, or takes any position which would render a tender, so long as that position taken by him is maintained, a vain and idle ceremony, as when be expressly declares that be will not accept tbe tender if it is made, or in any way obstructs or prevents a tender by admitting that a tender would be fruitless, by declaring tbe contract to be at an end, or, in a threatening tone, ordering plaintiff off tbe premises. ’ ’
In 28 Am. & Eng. Ency. of Law (2 ed.), page 5, tbe author says: “Tbe maxim that tbe law does not compel one to do a void or useless thing applies to tbe case of tender of performance of an obligation. Hence a tender is not necessary where it appears that, if made, it would have been fruitless.” On page 7 of tbe same book, tbe author says: “When it is clear that a tender will not be accepted, it need not be made. ’ ’
To substantially the same effect are Guillaume v. K. S. D. Land Co., 48 Or. 405 (86 Pac. 883, 88 Pac. 586); West v. Washington R. Co., 49 Or. 436 (90 Pac. 666); Merrill v. Hexter, 52 Or. 144 (94 Pac. 972, 96 Pac. 865).
In Guillaume v. K. S. D. Land Co., 48 Or. 405 (86 Pac. 883, 88 Pac. 586), Mr. Justice Moore says: “The rules
It is certain from the pleadings and the evidence in this case that if the plaintiff had tendered to the defendant the $30, either before or after he begun this action, the defendant would have refused to accept it. He obtained said release to be used as a defense to any action that the plaintiff might bring for damages, and he pleaded it as a separate defense, and relied on it as a defense throughout the trial in the court below. If the plaintiff had actually offered him said sum as a tender, and he had accepted it as such, said offer and the acceptance thereof would have operated as a rescission of said release, and he could not then have relied on the release as a defense. To tender him the $30, therefore, would have been a vain thing, as, manifestly, the offer would have been rejected. Under the facts as pleaded and shown by the record, a tender was waived and not necessary.
It is unnecessary to decide whether the plaintiff made a tender, or did what was equivalent thereto, as the record shows facts constituting a waiver, thereof; nor is it necessary to decide whether a tender is necessary in any case where a release has been obtained by fraud.
The instructions given by the court covered fairly and fully every point in the case, and the court did not err in refusing to give any of the charges requested by the defendant. The court has a right to instruct the jury in its own language, and it is not error to refuse to give a requested charge that states the law
The counsel for the defendant in their brief (page 15) say that they confine their argument to the main points. We have covered the points made in the brief and in the oral argument.
The testimony for the defendant contradicted much of the evidence for the plaintiff, hut, as it was given after the motion for a new trial was overruled, we could not consider it in passing on that motion. There was evidence to support the verdict, and we have no authority to pass on the weight of the evidence. It was the exclusive province of the jury to pass on the weight of the evidence and the credibility of the witnesses.
We find no error in the record, and the judgment of the court below is affirmed. Affirmed.
