Daily capital journal. (Salem, Oregon) 1903-1919, 1911-08-08
Sullivan '. Wakefield & Jacobsen,
MuItnOmah County.

I
co-partnership, doing business under
the firm name and style Of Wakefield
e Jacobsen, appellants. Appeal from
the circuit court for Multnomah
county. Hon. c. q. Gantenbein
|, Judge. Argued and submitted July
. 26, 1911. C. NJ. Idleman for respond
ent. arthur Langguth and c. NJ
Idleman on the brief). W. E. Farrell
for appellants. (Wilbur & Spencer
on the brief). Burnett, ]. Reversed.
The complaint charges in sub
stance that on April II, 1909, the
plaintiffs intestate was working as a
when pole about Is inches in diam
eter and Is feet in length and stand
! ing on end, leaning against a side
walk for rest or brace, fell upon
him, causing his death. It further
states that the side walk at that
point was about 10 feet above the
ground abutting thereon from the
west; that the defendants were oper-
ating a pile driver near there and
placed the pole, which was one of
their appliances, against the walk in
a AhANAGbo anu
and without fastening the same, with
one end thereof upon the ground and
the other resting against the side
walk and that the pole, so placed
without any support except the walk,
fell and caused the injury. These
allegations of the complaint were
traversed by the answer. The defen-
dants state in their answer that the
pole in question constituted an ap-
pliance used by them in driving the
piles; that 1t was standing in the
basement where they were working
substantially as already stated; that
while the plaintiffs intestate was
working in the basement the pole
fell upon him causing his death; that
he was man skilled in the work in
which he was engaged and knowing
and understanding the danger OF
working around the pole in the posi-
tion in which 1t was placed, assumed
all the risk and danger of his work
in that situation. They further al
lege that none of the employees of
the defendants knew that the de-
ceased was engaged or working
around or near the pole, but that he
had taken his position there without
giving any notice whatever to the de-
PENDANTS or any Of the agents of his
presence. Upon this they predicate
contributory negligence on the part
Of the decedent. The reply denies
the new matter in the answer. At
the close OF the testimony on both
sides the defendants moved for a di-
rected verdict. This motion was
overruled and at the conclusion Of
the trial the jury returned a verdict
in favor of plaintiff in the sum of
$4,000. The defendants appealed
from the judgment rendered.
Burnett, ]. The testimony tends
to show that a firm known as Bing-
ham & McClelland, as original con-
tractors, were engaged in the con-
struction of building on a block in
Portland on the east side of the Will
lamette River. They had excavated
for the basement leaving the side
walk on the east side of the premises
ut height of about 10 feet above
the ground floor At this stage of
the work 1t became necessary to
drive piling into the earth at the
margin of the basement upon which !
to rest a foundation. Each pile was
driven flush with the surface of the |
ground and the pole in question was
then placed on top of the pile and
used as a follower to drive it still |
farther down. The defendants were
contractors under Bingham & Nc |
Clelland with two other men for the |
purpose of driving the piles. While |
a pile was being driven, this follow |
er was set aside and leaned against |
the side walk. The decedent was
not an employe of the defendants but
was sent there by Bingham & Nc
Clelland with two other men for the
purpose Of snoring up the sidewalk
near where the pile driver was in
operation. The deCedent and his two
fellow workmen entered the excava-
ton on the sotuh side, passed near
the pile driver, secured piece of
timber from somewhere adjacent to
the north side of the excavation and
returned for the purpose of putting
1t under the side walk at point
near the northeast corner of the
basement Almost as soon as thew
arrived there with the timber this
follower fell upon the defendant with
immediate fatal effect.
The testimony tends to show that
none of the workmen, employees of
the defendants, saw the decedent or
MS comrades at any time till the fol-
lower fell and 1t appears also that
the decedent gave no notice To any
one OF his presence.
Ihe defendants assign as error the
refusal Of the court to direct a YER
dict for them upon this state Of the
evidence II this be error II must be
because no other conclusion could
pc drawn from the testimony bv any
reasonable man except the innocence
or the defendants of the charge Of
negligence.
IN operations of this kind Il Is tho
duty OF the persons in charge of the
work to use reasonable care and du-
lsence IN the management Of the an
phances with which they work IN
avoid tniuring any other person
The testimony shows that wbiIe
.ue ueeedent was not an employe of {
lhe defendants ne had right to be
upon the premises and was not a {
reaspasser. The injunction of rea- I
sonaole care and prudence resting l
upon the defendants operated In IA {
yor OF the decedent. The standard NJ !
conduct In such cases applicable IN I
the defendants has often heen defined Ia
70 De such care as a reasonably pru- {
lent man would exercise in the man 1
agement OF his own affairs under {
IiNe circumstances. On the other 4