CŒUR D'ALENE LUMBER CO. v. GOODWIN, 181 F. 949

WOLVERTON, District Judge (after stating the facts as above). Two questions are presented on this record for consideration: First, whether the complaint is sufficient; and, second, whether the motion for a directed verdict should have been allowed. The motion for a nonsuit was waived by the defendant introducing its evidence after the motion was denied by the court.

The sufficiency of the complaint is challenged upon the theory that it reveals too much, in that it shows that the hazard of the employment, whatever it was, was an open and obvious one, and that, by engaging in the service, the plaintiff assumed whatever risk of danger attended it. The defendant having answered, the complaint should now receive a liberal construction; and this would be equally so when challenged by objection to the introduction of evidence to support it.

It must be conceded that there is some ambiguity in the complaint, and much that is conclusion merely; but it does show that the plaintiff was put to work in a box of rather small dimensions, as stated in the complaint, about two feet wide and three feet long, with planks coming away from the edger passing him upon both sides, and required .to remove the edgings as they came by, which, coupled with the allegation that he was inexperienced in the service, and was not warned nor instructed relative to the danger attending it, would seem to exhibit a good cause of action, all intendments being in favor of the sufficiency of the complaint.

The first objection is therefore not well assigned.

As to the next question, the evidence tends to show that, after the plaintiff had worked about four weeks on and about the decks rolling logs and pulling them out of the water, he was put to work by the foreman of the mill in the edger pit; that he was wholly inexperienced in that service, and so advised the foreman, but that the foreman, notwithstanding, did not warn him of any danger, nor instruct him how to avoid such as impended; that the foreman agreed to pay him $2.75 per day, which was 25 cents per day more than he had been getting previously, and that much more than was paid to the man whose place he topic in the edger pit.

In telling how the accident happened, the plaintiff says: “There was a whole lot of edgings come out at the same time together, and a few boards probably, and there was a whole lot of edgings come out at this time; and I stooped over to get the edgings, and I raised up my leg to stoop over to catch them, and a wide board, about 18 or 20 feet long, I should judge, came out from the edger and struck me here, under the knee, and jammed my leg up against the roller and bruised it, and then there was another board come out and kept pushing that one on; and I stayed in there for a good while, and the boards kept pushing out—it couldn’t go back—the saw was there.” He further relates that there were two band saws composing the edger; that one is called the “big side” and the other the “small side”; that one of them cuts all the big logs, and the other the small logs; that at the time two boards came out at the same time, there being two edger men working at the double edger; and that his duty was to push the edgings off the table and cast them down on an endless chain at the sides to be carried away to the slasher.

Further on, he states that, when the edgings were getting away from him, he turned right around from the saw to catch the edgings, turning to his left, and the board came out from the big saw, and struck him under the right knee from behind—the big edger, when facing the same, being on his right. Further, he says: “I tussled with the board for quite a while until I got it out. I screamed' and hollered, and nobody came to me, so I got out as best-1 could.

X lifted-the end of the board up as well as I could, and when I lifted it up, of course, the saws pushed it out, and it run along.” This occurred in the afternoon; but plaintiff went back to work, and continued all the next day, and the day following until noon, when he told the foreman of his injury. The foreman directed him to go to the office and get a ticket to the hospital, which he did. He remained at the hospital about two days. Not liking the physician, he left, and employed another doctor, and afterwards went to work elsewhere.

He worked from place to place until December, when, becoming very ill, he went to the Harrison hospital. On examination by the physician in charge, it was found that he was afflicted with acute inflammation of the bone, about the knee joint and above and below it, termed “osteomyelitis,” which culminated in amputation of his leg at the upper third of the thigh. A witness who seemed to be familiar with the operation of the double edger testified that there was danger in the pit, providing the board was so long that it was not released from the press rollers when the end of it crossed the pit.

Among the witnesses for the defendant was one H. W. Strathern, who was a millwright and of long experience in the operation of sawmills. He described the edger pit minutely by dimensions as described in the statement preceding this opinion. As to the roller back of the pit, he says: “There is a plank put in so that if a board—■ They are liable to bend up or bend down as the case may be, so there is a plank set at an angle so that it will strike that plank and work up to the roll and go straight over the roll.” In the witness’ opinion the edger pit was a safe place in which to work.

He described a board passing through the edger as coming pretty fast, but said that after it leaves the edger the force dies off, and that if it should strike a man it would be without force. On cross-examination, when asked whether a green hand in the pit was liable to get hurt, he answered: “X don’t think a man would put a man in there unless he notified him. I know I never do.” And further, in effect, that, as a prudent millman, he would give such warning.

The foreman testified that, when he employed plaintiff, he told him that the only danger was “that the boards would catch him and shove him out of the hole.” Further, that at the time of the accident the mill was running on logs in length from 12 to 16 feet, with once in a •while a small log from 18 to 20 feet; that he had seen a man pushed out upon this table; that the man who succeeded plaintiff got pushed out by looking around to the back of the mill; and that a 20-foot board would just about catch a man, was all. John F. Smith, a millwright, and another witness for the defendant, testified as follows: “Q.

Now, suppose that a man while tailing that edger should turn with his right side towards the edgers and stoop over with his hand near the rollers behind him, stand on one foot and raise his right leg until his knee is on a level with the surface of the edger table, and an 18-foot board were to come out of the edgers and down the table' and strike him in .the knee joint, the inside of the knee joint, on the right-hand side, would it have force enough to drag or push him up against this roller so as to injure his knee? A. If he turned his right side to the edger? Q. Yes, sir. A.

I don’t think it would strike him with force, enough to pin him in there. It might push him over the rolls if it got a square strike at him., I don’t see how it could pin him in there.” • A little later the witness continued: “It requires a.certain amount of skill there, or a man must get accustomed to the kind of work that he is doing.

It is a pretty busy place when small stuff is coming through that edger.” There is a dispute in the evidence as to the length of time the plaintiff hád a helper; the plaintiff saying but a short time, while the defendant claims that there was one present during the whole time plaintiff worked in the' pit. Such, in effect, is the testimony adduced bearing upon the particular controversy submitted for consideration.' Counsel for plaintiff in error has reduced the inquiry to a narrow limit.

By his seventh assignment of error he alleges and shows that the trial court took the question whether the defendant had provided the plaintiff with a reasonably safe place in which to work from the jury, saying to them that the evidence offered by the plaintiff was insufficient upon which to warrant them in finding upon that issue. The other point, whether the plaintiff had or had not a helper, is now immaterial, as it is not shown that the helper in any way instructed him touching the danger attending the service.

That the service was attended with much danger, dependent upon the length of the board being edged and trimmed, there can be but little question. If the boards were of the length of 20 feet or more, they would be driven across the edger pit with great force by the action of the press rollers, and if the workman was caught by them he would be forced out of the box. It is quite evident that a person might be caught just as plaintiff claims his injury occurred. Even if the board was not of the length of 20 feet, it might be driven forward by another board following it through the press rollers, and do a like damage.

The plaintiff was an adult, being 26 years of age, and the presumption obtains that he would comprehend and appreciate the ordinary dangers attending the operation of machinery with which he was familiar, or about which he had worked for some length of time. In this instance, however, his position was behind the edger, and 18 or 20 feet away from it, and having nothing to do with its operation.

When set to work in the box, he advised the foreman that he was wholly inexperienced in that service; but, notwithstanding, he was neither instructed as to the operation of the machine nor warned of the especial danger that would attend him in his work. At least, there was evidence to this effect to go to the jury.

For the uninformed and unwary, the edger pit constituted a veritable trap, as, when the boards were coming from the edger across the pit loose, there was no danger, but when long and rigid, being not yet released from the press rollers, or - when being, driven forward by another board from behind, there was abundant peril and the liability to injury was great. The peculiar situation, and the latent danger attending it, required of the foreman, when advised of the inexperience of the employé, that he give special instructions that injury" might be avoided.

Upon the whole, we are of the opinion that the court properly submitted the cause to the jury upon this question alone. See Stager v. Troy Laundry Company, 38 Or. 480, 63 Pac. 645, 53 L. R. A. 459; Verdelli v. Gray’s Harbor Commercial Co., 115 Cal. 517, 47 Pac. 364. Some question is made that the damages assessed are excessive, based upon the contention that the necessity for the amputation of the limb was not caused by the hurt that plaintiff received, but sprang from an independent trouble.

However this may be, we do not find that the question was ever submitted to the court below, and it is not properly here for our consideration. The judgment is affirmed.