(dissenting). This case was tried upon the theory that decedent was injured as a result of a change, without notice to decedent, in the method of handling the sixth timber from that used in handling _ the first five. The same evidence which shows there was a change, shows that decedent had full knowledge of the change and that it was made under his direction as foreman.
Plaintiff should recover upon the case alleged or not at all. The majority opinion is based, upon the statement: “Defendant’s negligence, if any there be, must arise out of ‘the conduct of Moyer in lifting the timber before Slater reached a place of safety.”
With other evidence set out, the majority Opinion quotes and underscores the following from Moyer’s testimony: “I did not know, when I picked the timber up, whether Slater was in a safe position or not. I knew he was out of view, past the end of the ear.”
. Following the quotations, the opinion concludes: “A jury might have found Moyer was not exercising ordinary care when he lifted the timber, without taking greater precaution to learn whether' those he could not see were in a place of safety.” To have done so, the jury must have ignored the obligation placed by the law upon plaintiff to prove negligence by a preponderance of the evidence, and must also have ignored’every definition of the term “ordinary care.”
The evidence is that: Slater, as foreman, directed the change of method in handling the sixth timber, after he was told (and which he must have known without being told) that the timber would swing around to the south; there was no change in the signals; the timber was embedded in the earth to its top; the cable was fastened to the timber about 10 feet from the east end of the timber, 60 or 70 feet away from the “clam car,” so that necessarily any pick-up must have taken time and been slow; after the usual signal, the cable slack was taken up by Moyer; every one left the side of the timber, Slater having a shorter distance to go to a place of safety than Trier, and went a shorter distance than’ Geist, Wilson, or Trier; Slater was not hard of hearing, and had less than 25 feet to go; all the witnesses say that Moyer waited for the men to get away; nothing that was done was unknown to Slater.
If the statement of Moyer, relied on by the majority opinion, amounts to anything on the question of negligence, it conclusively shows that Moyer was not negligent, but that Slater was. The reason Moyer did not know whether Slater was in a place of safety was because, when he picked the timber up, Slater was out of view, past the end of the car, that is, he did not pick the timber up until Slater, going in the direction of safety, was out of sight, past the end of the car. All say the timber at first came up out of the ground very slowly, and, manifestly, embedded as it was, and as far out on the cable as it was, it must have done so, yet Slater, “out of view, past the end of the ear,” could not have been, when Moyer started the slow lift, more than one step from where he was when hurt. In addition to all this evidence, and as showing the extreme care of Moyer, he, before starting’ the lift, told every one it would swing, and to get out of the way. -Defendant was not bound to take more care, of Slater than he was bound to take of himself. It was not an insurer. Instead of meeting the bur*781den of proof, plaintiff lias failed to present any evidence of negligence on defendant’s part. This is not a case where the accident is itself evidence of negligence.
The judgment should be reversed.