Yovovich v. Falls City Lumber Co.

149 P. 941 | Or. | 1915

Mr. Justice Bean

delivered the opinion of the court.

It is contended by counsel for defendant that the evidence does not bring the action within the Employers’ Liability Act. At the close of the evidence, they moved for a directed verdict in favor of the defendant company.

Isaac 'Barton, the defendant’s foreman, describes the condition of the tree thus:

“The tree had just tipped over, and the roots stood not straight np and down, because the ground was a little bit sloping; and there was another tree laid across here. Now, as to whether that was a windfall (but I think it was), I don’t remember just the fact of whether that was a windfall or not, but I think the upper one was a windfall, and the top of this tree laid np on that, so that it laid kind of with the hill. It couldn’t lay flat, and, of course, when that was sawed off, it just simply tipped back, and left the tree — the root didn’t stand up straight after it was tipped back. It stood a little that way (illustrating), because it couldn’t go clear back after tipping out, hardly, because there would more or less dirt, you know, rattle off. Well, that held it just a little bit. It is pretty near straight, but not quite.

‘ ‘ Q. And how high did you say these roots stuck up in the air?

“A. About 30 feet, I should judge; that is, to the point of them — not the dirt, but the point of the roots. I should judge they stuck up 30 feet, because it was a hemlock, and tore up an awful pile of dirt.”

Barton further testified in part:

“Well, I got this thick wedge and drove it in so I could slip his ax out, and after I got his ax out he started to walk down the tree; and I says, ‘Stanko, you see this tree has got a root on it here, and she is’—

“Q. (Interrupting.) The tree has got what?

“A. A root on it; and I says, ‘When it is sawed off, that is going to upset — fall back.’ * * ”

The testimony of Evan Yovovich, as interpreted, was in part as follows:

“A. He was right with him [decedent], only 20 feet distant from him — 20 feet distant from where he was killed. * * He says he saw his cousin there sawing the timber, there, kind of like that. There was two together — ■

“The Court: Laying side by side?

“A. Yes; and he sawed one off, and he went on the other, and he sawed over on this side, and cut the other side, and at that time he turned around. He was working, and don’t know. It was when he heard something crack; then he turned his eye to him, and says he saw him and the ax flying in the air.”

It is urged by counsel for defendant that there is no evidence in the record showing that it was practicable to perform the work in a safer way than the means employed. Counsel candidly state in their brief that, had said fact been shown, the case might have been brought within the provisions of the Employers’ Liability Act.

1-3. Section 1 of the act provides inter alia that generally all owners, contractors or subcontractors, and other persons having charge of or responsible for any work involving a risk or danger to the employees or the public, shall use every device, care and precaution which it is practicable to use for the protection of life and limb. The application of this general clause of the statute is not a new question, and it is perhaps proper to state that the matter has been thoroughly considered by the court at different times. In Dunn v. Orchard Land & Timber Co., 68 Or. 97, at page 101 (136 Pac. 872, at page 873), this court had before it the construction of Section 1, and, speaking through Mr. Justice Burnett, said:

“The statute exerts its authority against ‘all owners * * or persons whatsoever engaged * * in the erection or operation of any machinery.’ It thus takes cognizance, no't only of those who engage in building, but also those who operate machinery; and where it declares that ‘generally all owners, contractors or subcontractors, and other persons Having charge of, or. responsible for, any work involving a risk or danger to the employees or the public,’ it does not in good reason restrict the benefits and requirements of the law to particular persons mentioned in the beginning of the section, but rather enlarges and expands the scope of the act. The statute lays its commands, not only upon those engaged in building or in the transmission and use of electricity, but also upon those other persons included in larger category set out in the last clause of the first section.”

It may also be stated that the general clause of the statute comprehends, within its provisions, acts of employers having charge of or responsible for work, involving a risk or danger to employees, usually termed hazardous occupations, which are not enumerated in the first part of the section: Raiha v. Coos Bay Coal & Fuel Co., 77 Or.-(149 Pac. 940); Schulte v. Pacific Paper Co., 67 Or. 334 (135 Pac. 527, 136 Pac. 5); Wasiljeff v. Hawley Pulp & Paper Co., 68 Or. 487 (137 Pac. 755); Heiser v. Shasta Water Co., 71 Or. 566 (143 Pac. 917); Lang v. Camden Iron Works, 77 Or. - (146 Pac. 964, 968). It appears that the decedent left no widow, lineal heirs, adopted children or mother therefore, by Section 4 of the act, the father has the right to maintain the action: McFarland v. Oregon Elec. R. Co., 70 Or. 27 (138 Pac. 458, 462). The question as to whether or not the work conducted by an employer involves a risk or danger to the employees is a proper one to be left to the jury as a question of fact: Schaller v. Pacific Brick Co., 70 Or. 557 (139 Pac. 913, 915).

4 — 6. The main question is whether the evidence in this case brings it within the statute. The condition of the trees and the manner of conducting the work were fully explained to the jury by the evidence, and it was for it to determine, under all the facts and circumstances, whether every practicable device and care was used by the defendant. To a jury exercising a common knowledge of the law of gravitation, and in the light of the experience of men of every-day affairs in regard to the work of cutting trees, the evidence tended to show that the defendant’s foreman or head bncker neglected to use any device, care or precaution to keep the 30-foot stump in the position in which it was when the tree was marked and sawed, or to first cut the tree at the usual place near the roots. It is contended by counsel for defendant that the evidence does not show that the work could have been done in a safer way, and that, in order to bring the case within the scope of the statute, it was incumbent upon the plaintiff to produce such proof. This was plainly disclosed by the circumstances of the operations, if not by direct evidence. The deductions to be drawn from the facts and circumstances disclosed were a proper matter for the jury. It was not necessary for someone to act in the capacity of an expert and inform the jury what conclusion should have been drawn from the delineated facts and circumstances: Myers v. Portland Ry., L. & P. Co., 68 Or. 599 (138 Pac. 213); Pulsifer v. Berry, 87 Me. 405 (32 Atl. 986). The evidence of Isaac Barton, foreman, that he warned the defendant to be careful and not get hurt, indicated that from his view there was special danger. The testimony in the case tended to show, and the jury could fairly have believed, that some precautions were necessary in marking the tree; that no experienced woodsman would have sawed the tree while in such position, 30 or 35 feet from the roots, any more than an experienced axman would have cut a standing tree that distance from the ground, and that it was negligence of the architect of the work, the head bucker, to so direct the timber to be cut; that, according to common parlance, it was the preparation of a trap which would be sprung when the tree was cut and hurl the employee into the air, which by reasonable and practicable inspection and precaution could and should have been avoided; that the work was hazardous and involved a risk and danger to the employee. We hold that the case comes within the provisions of the statute, and that it was properly submitted to the jury. "Witness Evan Yovovich stated that, when the tree was freed from the weight of the top, of course the roots and stump went back as nearly into place as the displaced earth would permit. Under Section 5 of the act, when the decedent conformed to the orders of his superior according to his duty, the resulting injury was not his fault. According to Section 2, the person in control of the work was the agent of the employer:

7, 8. Exceptions were taken to the instructions given to the jury upon the question of damages. The court instructed the jury in effect to take the average earnings of the deceased as a basis, with the prospective years that he would, in the course of nature, live, and determine from that how much he would save during that time which would go to his heir if he should die, informing them that it depends upon the industry, earning capacity, frugality, and saving qualities of the deceased; that it was not necessary for them to consider how old the father of the deceased was, but how much he lost by reason of the decedent’s untimely death; that they should not take into consideration the wounds to his feelings nor give compensation for the pain and suffering that might have been inflicted upon the relative, but estimate the financial loss suffered by the death. Counsel for defendant requested the court in effect to instruct the jury that the measure of damages was limited to compensatory damages or what damages would compensate plaintiff for his loss of the deceased. We think that the requested instruction was substantially covered by the charge given by the court, and that the instructions were in substance in accordance with the ruling in McFarland v. Oregon Elec. R. Co., 70 Or. 27 (138 Pac. 458, 462), and McClaugherty v. Rogue River Elec. Co., 73 Or. 135 (140 Pac. 64). From the amount of the verdict in the case, it does not appear that the instructions of the court as to the measure of damages were prejudicial to the defendant.

Finding no error in the record, the judgment of the lower court is affirmed. Affirmed.

Mr. Chief Justice Moore, Mr. Justice Eakin and Mr. Justice Harris concur.