Dryden v. Pelton-Armstrong Co. , 53 Or. 418 ( 1909 )

Mr. Justice Eakin

deivered the opinion of the court.

1. The instructions given by the court practically include those requested by defendant, and it is not necessary to mention them at length. There is no question involved here in the motion for a new trial not covered by the motion for judgment of nonsuit. It is first urged by plaintiff that defendant waived the motion for non-suit by offering evidence in its own behalf after the motion was denied. Under the practice in this State a motion for a nonsuit is not so waived, but plaintiff urges that, the cause of action having arisen in the State of Washington, the law of the place where the injury occurred should control here, and that in Washington a defendant waives a motion for nonsuit by introducing evidence on its own behalf - after the motion has been denied. But we find no difference between the rule in Washington and in Oregon upon that question. In Matson v. Port Townsend R. R. Co., 9 Wash. 449 (37 Pac. 705), it is held: “The fact that a defendant goes into his defense of an action after the denial of his motion for a nonsuit to which he was entitled at the time the motion was interposed, operates as a waiver thereof merely to the extent of allowing the plaintiff to benefit by any evidence introduced by defendant or by himself in rebuttal.” In Dimuria v. Seattle Transfer Co., 50 Wash. 633 (97 Pac. 657), it is held that the motion is waived by defendant proceeding with its evidence, but such waiver extends only to allowing plaintiff the benefit of any evidence thereafter introduced. This is the practice in Oregon, beginning with Bennett v. Northern Pac. Ex. Co., 12 Or. 49 (6 Pac. 160), and recognized in Carney v. Duniway, 35 Or. 131 (57 Pac. 192: 58 Pac. 105), and Trickey v. Clark, 50 Or. 516 (93 Pac. 457), where it is held that, if plaintiff did not prove a cause sufficient to go to the jury, a refusal of a nonsuit will not be disturbed if defendant afterward supplies the omission. If the defect in plaintiff’s case is cured by subsequent testimony, the motion cannot prevail.

2. Neither does the lex tod govern in matters relating to the remedy and course of procedure. 22 Am. & Eng. Enc. Law (2 ed.) 1383. A motion for a judgment of nonsuit is a part of the procedure and the law of the place of the trial must govern in determining it.

In resisting the motion for nonsuit, plaintiff urges that negligence on the part of defendant was established:

(1) In the defective construction of the chute, namely, that a knuckle or joint was made in the logs forming the chute at the commencement of the curve. • As expressed by plaintiff, “it had been butted and worn off there. In place of being a curve, it was more of a joint.”

(2) That defendant was negligent in permitting a log to lie close to the chute at the point where the injury occurred. (3) That defendant failed to provide a walkway for plaintiff along the side of the chute. At the time of the injury plaintiff testifies that he had two logs in the chute, the first one small and the second large. To the back end of the second one the grabs were fastened and the small log pushed by it. He was traveling close to the chute and about four feet forward of the back end of the second log, and, as it reached the hump, the small log caught at the knuckle or joint, and thus caused the logs to turn out of the chute at the point of their contact with each other, and the large log turned across the chute, the back end of which crushed plaintiff’s foot against log No. 5. Whether there was a walkway or not at other points than where the injury was received is immaterial in this case, as the absence of it did not contribute to the injury, and it appears that there was room to walk between the log in the chute and log No. 5 at the place of the injury. Nor is a well-built walkway outside the chute necessary, as no duty required the presence of the chaser beside the log while it was moving down the chute. He was only required to follow the log, either.in the chute or outside it, as he found most convenient. The log, when being propelled down the chute, moved, as expressed 'by the engineer, “about as fast as a man walks, an ordinary walk.” Everything was open and visible to plaintiff and the movement of the log very moderate, and any danger that existed was apparent to him, and the risk was assumed by him. It is said in Johnson v. Oregon S. L. Ry. Co., 23 Or. 94 (31 Pac. 283): “The servant also takes' upon himself, in addition to the ordinary risks incident to the business, such other risks as are open and visible.”

3. It is conceded by counsel, both for plaintiff and defendant, that, as the cause of action arose in the State of Washington, the lex loci will control in this jurisdiction in determining the liability of defendant for the injury complained of, and the rule in that State is that, where the danger which besets the servant is open, apparent, and known to him, he assumes the risk of such employment. It is said in Kelley v. Cowan, 49 Wash. 606 (96 Pac. 152): “The principles of law controlling a case like the one at bar are well settled, and have been for a century or two. The servant assumes the risk of dangers that are to him open, apparent, and-known.” To the same effect are Miller v. Moran Bros. Co., 39 Wash. 631 (81 Pac. 1089: 1 L. R. A. (N. S.) 283: 109 Am. St. Rep. 917), and Ford v. Feffernan Engine Works, 48 Wash. 315 (93 Pac. 417).

4. As already suggested, the dangers to plaintiff arose because of his position beside the log in the chute. If he had been behind it he would have been absolutely safe, and an employee who voluntarily chooses a dangerous place to work when a safe one is available to him cannot recover for an injury sustained thereby. Hoffman v. American Foundry Co., 18 Wash. 287 (51 Pac. 385); Stratton v. Nichols Lbr. Co., 39 Wash. 323 (81 Pac. 831: 109 Am. St. Rep. 881); Bundy v. Union Iron Works, 46 Wash. 231 (89 Pac. 545). He followed the log not for anything he could do in propelling or guiding it, but only to give a signal if trouble should arise, and his presence at the signal station was only required after the log had passed it. Therefore the danger was open, visible, and known to plaintiff, and he assumed the risk incident thereto.

The court erred in denying the motion for judgment of nonsuit, and the defect in plaintiff’s proof is not cured by the subsequent testimony, and the judgment is reversed and remanded to the court below for such further proceedings as may be proper, not inconsistent with this opinion. Reversed.