Daily capital journal. (Salem, Oregon) 1903-1919, 1911-05-24
WITS '. The George Palmer Lumber
Co., Union County,

Z PN"l iolH tue circuit court for UnOu
county. Hon. j. W. Knowles. Judge
argued and submitted at Pendletou
May l, 1911. F. S. Ivanhoe, for re-
spondent. 7. H. Crawford. for apnel-
) liant. Moore, J. Affirmed.
This action is based on the factory
inspection act a. o. L. Sec. 5O40 et
) seq) and was instituted by Joseph w
Mills against the George Palmer
. Lumber company, a corporation. to
; recover damages for a personal in
jury. The defendant owns and oper-
ates a box factory, part of the ma
chlnery Of which consists of a circu-
lar saw projecting three inches above
the surface OF table. Short pieces
OF lumber are pushed by hand along
tne table against the saw, an adiusta-
Die gauge regulating the width of the
cut, Countersunk in and bolted to
the table at the back of and in line
with the saw is a thin iron arm,
ABOUT an inch and a half wide at the
bottom and tapering towards the ton.
extending above and in the same di-
rection with the saw, forming the
segment of a circle. The lower end
OF the arm is sharpened to a wedge
winch, entering the kerf made in
boards prevents them from binding
the saw. The upper end forms a bolt
to which is attached a small block of
wood, inclining forward and extend
ing downward, that precudes saw
dust from striking the operator, yet
leaving sufficient space beneath for
the free passage of boards to the
saw. While ripping box lumber sy3
pieces of which were required to
complete the desired width and ne
cesssitated the use of both hands to
keep the material parallel and in po-
sltion, the plaintiff lost the thumb
and the first two fingers of his left
hand by coming in contact with this
saw,
The complaint describes the condi-
ton Of the machinery and alleges as
negligence the defendants failure to
safeguard the saw and that 1t was
practical so to shield It without I'M
pairing its use. A compliance on his
part with the several conditions of
the factory inspection act is also as
Serted.
The answer, having denied the ma
terial aVerments of the complaint, al
legged that the iron arm and the
wooden block constituted a reasona-
BILE safeguard. Other defenses are in
terposed but they are not deemed ma
terial,
A reply put in issue the allegations
OF new matter in the answer, where
upon the cause was tried, resulting
In verdict for plaintiff IN the sum
of $1,000 and, judgment having been
rendered thereon, defendant appeals
Moore, j.! 1t is maintained by de-
fendant's counsel that the court COM
mitted several errors to which excep-
tons were duly reserved, It is in
sisted by plaintiffs counsel, however,
that though this cause was tried
prior to November s, 1910, when sec
tion of article of the constitution
was amended, Il L. o. L. p. XXIV)
the bill of exceptions was not settled
until December 26th of that year, and
as all the testimony has been brought
up, the appeal is governed by the
practice prescribed by the altered
fundamental law, and such being the
case any error committed at the trial
should be disregarded and the judg-
ment affirmed
The apepal was taken and the tran
script and bill of exceptions were
prepared after the organic law was
amended, thereby making it's provi-
sions applicable to the case at bar.
Darling " Miles, 112 Pac 1884. The
altered section is as follows "In ac-
tions at law, where the value in con-
troversy shall exceed $20 the right
of trial by jury shall be preserved,
and no fact tried by jury shall be
otherwise re-examined in any court
of this state, unless the court can af-
frmatively say there is no evidence
to support the verdict. Until other
wise provided by law, upon appeal of
any case to the supreme court, either
party may have attached to the bill of
exceptions the whole testimony the
instructions of the court to the jury,
and any other matter material to the
decision of the appeal. If the su-
supreme court shall be Of opinion,
after consideration of all the matters
thus submitted, that the judgment of
the court appealed from was such as
should have been rendered in the
case, such judgment shall be affirmed
Notwithstanding any error committed
during the trial; or if, in any respect,
the judgment appealed from should
be changed, and the supreme court
shall be of opinion that 1t can deter
mine what judgment should have
been entered in the court below, 1t
shall direct such judgment to be en-
tered in the same manner and with
like effect as DEGREES are now entered
in equity cases on appeal to the su-
preme court; provided, that nothing
in this section shall be construed to
authorize the supreme court to find
the defendant in criminal case gull
ty of an offense for which a greater
penalty is provided than that Of
which the accused was convicted in
the lower court" Obeying the man
date thus ordained the entire testi-
mony given at the trial has been
carefully scrutinized and from such
investigation we cannot affirmatively
say there is no evidence to support
the verdict, and based on this conclu-
sion the action of the court in deny
ing motion for judgment Of non
suit and in refusing to direct a YER
dict for defendant will not be re-
viewed.
An examination of the section of
the constitution quoted will show that
authority to regulate the practice on
appeals in this court is reserved, to
be exercised either by the legislative
assembly or by the people OF the
state under the initiative power. No