Adams v. Corvallis & E. R. Co.

152 P. 504 | Or. | 1915

Mr. Justice Bean

delivered tlie opinion of the court.

1-3. The principal questions for consideration were raised by the timely interposition by defendant’s counsel of a motion for a nonsuit and one for a directed verdict in its favor. It is charged on the part of the company that the evidence in the case is insufficient to be submitted to the jury or to support the verdict. A point of contention is that there is no proof in the record that the method of performing the work adopted by defendant was not the usual one pursued by it. From' the testimony of the plaintiff above referred to we are unable to accede to this. It is clearly shown by his evidence that the usual manner of performing the kind of work in which he was engaged at the time of the injury was different from that directed by the order of the foreman, while the testimony of Hoflich and other witnesses for defendant tend to contradict the plaintiff. The défendant is not in a position to assert that it was plaintiff’s fault that occasioned the injury, for the reason that the evidence tended to show, and the jury found, lhat Adams and his co-worker, Freeman, were not permitted to perform the task in their own way nor according to the usual method adopted by the company. In the execution of the undertaking the defendant was represented by Mr. Hoflich. It was the duty of these workmen to obey his orders. "When the foreman informed Adams and Freeman that the mode of reducing the carload of lumber then pursued by them was too slow, and directed them to perform the work in a particular way, which differed from the customary manner, all of which was detailed to the jury, it then became a question for that tribunal to determine from all the facts and circumstances shown by the evidence whether the process adopted by the defendant was a reasonably safe one, or whether the work in which the company was engaged was carried on so as to expose its servant Adams to risks and dangers which might have been guarded against and avoided by tbe exercise of due care: Galvin v. Brown & McCabe, 53 Or. 598 (101 Pac. 671); Brown v. Oregon Lumber Co., 24 Or. 317 (33 Pac. 557). The jury by their verdict found tbe latter condition prevailed, and that it was tbe proximate cause of tbe injury.

4, 5. In tbe absence of specific statutory requirements, a railroad company discharges its full duty to its employees in adopting and using tbe standard railroad methods, rules or system: Jackson v. Wheeling R. R. Co., 65 W. Va. 415 (64 S. E. 450). In tbe performance of work similar to that in which tbe plaintiff was employed at the time of the accident, in tbe conduct thereof tbe duty of tbe master is tbe same as devolves upon him to select competent servants or to supply them with suitable devices or appliances to do tbe work allotted to them. Tbe standard of due care is tbe conduct of tbe ordinarily prudent man: Brown v. Oregon Lumber Co., 24 Or. 317 (33 Pac. 557); Titus v. Bradford, 136 Pa. 618 (20 Atl. 518, 20 Am. St. Rep. 944); Johnson v. Portland Stone Co., 40 Or. 440 (67 Pac. 1013, 68 Pac. 425). Employers are not insurers. They are liable for consequences, not of danger, but of negligence, and tbe unbending test of negligence in methods, machinery and appliances is tbe ordinary usage of tbe business: Coin v. J. R. T. Lounge Co., 222 Mo. 488 (121 S. W. 1, 17 Ann. Cas. 888, 25 L. R. A. (N. S.) 1190).

6, 7. While mere proof of an accident ordinarily raises no presumption of negligence, yet, where it is accompanied by proof of facts and circumstances from which an inference of negligence may or may not be drawn, tbe case must be submitted to tbe jury: Geldard v. Marshall, 43 Or. 438, 444 (73 Pac. 330); Galvin v. Brown & McCabe, 53 Or. 598 (101 Pac. 671). It was incumbent upon tbe plaintiff to show, not only that the method adopted and pursued by defendant in reducing the car of lumber was unusual, but also that it was more dangerous in itself than the ordinary one: Cunningham v. Fort Pitt Bridge Wks., 197 Pa. 625 (47 Atl. 846).

8. The pivotal question in the case at bar is a disputed one of fact, which, from conflicting testimony, the jury have decided in favor of plaintiff. We are not required nor permitted to exercise our judgment in order to say which'assertion of the parties is true. This was the special province of the jury. Article VII, Section 3, of the Constitution provides in part that:

“No fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence’ to support the verdict. ’ ’

It was for the jury to determine from the evidence under the law whether the method put in operation by defendant was a reasonably safe one. The jury evidently believed that the plan adopted necessitated that Freeman be ensconced behind the load of lumber on the inside of the car, making a kind of breastwork over which he was compelled to throw the lumber, and that Adams’ position on the outside, where he was required to speedily remove the timber, with no flag of truce, and only a signal by verbal communication, which was likely to be misunderstood, was unnecessarily rendered a dangerous place in which to work.

9. The question relating to the manner of removing lumber from a car was one of common experience and knowledge, and the court was warranted in submitting it to the jury. It was not a matter upon which the testimony of experts was required to aid the jury in passing upon the question at issue. Our employers’ liability law (Laws 1911, p. 16) enjoins upon an employer in work involving a risk or danger to employees the duty of using every device, care and precaution which it is practicable to use for the protection and safety of life and limb. While we are of the impression that the present case is governed by, and should have been tried under, that law, it was not invoked by plaintiff upon the trial. This, however, was favorable to the defendant.

10-12. As to the defense of contributory negligence, it could not be said, as a matter of law, that the plaintiff was negligent. The method of work was changed to promote the speed. Plaintiff was directed to check the dimensions of pieces of lumber as they fell, and, after signaling Freeman to stop and receiving his response, to proceed with the removal of the ’ sticks already thrown out. He followed this direction. Had he delayed until Freeman had crawled forward to the door of the car, he would have violated his orders and defeated the purpose of expediting the preparation of the car. Plaintiff was not legally in fault for following the directions of the foreman. His direct evidence and the difficulty experienced by Freeman in determining what plaintiff said at the time of the accident tended to show that it was not easy for the men to hear the signals in the positions in which they were placed by the command of Hoflich. It was necessary for plaintiff to accept the signal given by Freeman or cause the very delay which the foreman’s plan of operation was designed to obviate: Under these circumstances, the jury might reasonably find that the plaintiff was not at fault nor guilty of contributory negligence. It is true that the evidence of Hoflich and the other witnesses for defendant tended to show that Freeman could hear a person distinctly on the inside of the car, but this controversy was within the province of the jury. A servant who disobeys the orders of his superior takes upon himself the burden of showing the lawful reason for such disobedience. Respect for those in the master’s authority, as well as a consideration for his own interests, may very properly induce one to waive his own judgment for that of his superior. No doubt, this was the reason why Adams adhered to the orders of Hoflich and refrained from entering into a dispute and creating discord, and perhaps subjecting himself to a dismissal. The company is not in a position to claim that Adams erred in carrying out the plan mapped out by this foreman: Chicago & N. W. R. Co. v. Bayfield, 37 Mich. 205, 210. A servant is not guilty of contributory negligence in obeying the orders of his master, unless the risk is so great that a person of reasonable prudence under the same circumstances would have refused to obey: Pressed Steel Car Co. v. Herath, 207 Ill. 576, 580 (69 N. E. 959); Chicago & N. W. Ry. Co. v. Bayfield, 37 Mich. 205, 210; Butler Ballast Co. v. Hoshaw, 94 Ill. App. 68.

13. The court instructed the jury in part:

“If you find from a preponderance of the evidence that the plaintiff and his co employee, Clyde Freeman, were working under the orders and directions of the outside foreman, George Hoflich, and were required to obey the orders and directions of such outside foreman, then the outside foreman was a vice-principal of the defendant, and if you find that he was negligent in failing to perform the duties which the law imposes on the defendant, as stated in these instructions, if he did so fail, then his negligence, if any, was the negligence of the defendant.”

By instruction 28 the court further charged the jury:

“If you find from a preponderance of the evidence that defendant was negligent, under the rules laid down in these instructions, in failing to exercise reasonable care that the method or rule prescribed for plaintiff to work should he reasonably safe * * or in ordering plaintiff and his coemployees to quit a safe method of work * * for an unsafe method, * * then the mere fact * * that plaintiff followed the rule or method prescribed, or obeyed the order given, is not negligence, unless you find that a reasonably prudent and careful person would not, under similar circumstances, have followed such method or rule or obeyed such orders.”

We think the instructions fairly submitted the question to the jury.

14-18. As to assumption of risk under the rules prevailing independent of our statute a servant assumes the ordinary risks and dangers incident to his employment. The jury having found the defendant negligent, assumption of risk is not presumed. Plaintiff did not assume risks occasioned by the negligence of the defendant: Oberlin v. Oregon-W. R. & N. Co., 71 Or. 177 (142 Pac. 554, 557); Olsen v. Silverton Lumber Co., 67 Or. 167, 176 (135 Pac. 752); Vanyi v. Portland Flouring Mills Co., 63 Or. 520, 530 (128 Pac. 830); Manning v. Portland Shipbuilding Co., 52 Or. 101, 103 (96 Pac. 545). Adams did not assume the risk of injury in obeying the orders of Foreman Hoflich unless a person of ordinary prudence would not have done so; Millen v. Pacific Bridge Co., 51 Or. 538, 555 (95 Pac. 196); Illinois Steel Co. v. Rysha, 200 Ill. 280, 285 (65 N. E. 734). The allegations of defendant as to assumption of risk are practically a repetition of those relating to contributory negligence. The defendant does not allege that the duties of plaintiff required him to place himself opposite the car door and pick up lumber while Freeman was throwing it out, but, on the contrary, that Adams carelessly and negligently did so without giving Freeman any signal to stop, and, as the evidence of defendant purports to claim, in violation of instructions. This was a matter of dispute which was properly tried out as alleged contributory negligence, and should not be classified under assumption of risk: Oberlin v. Oregon-W. R. & N. Co., 71 Or. 177 (112 Pac. 557). There is no allegation that plaintiff’s fellow-servant, Freeman, was negligent, and there is practically no proof whatever that any wrongful act of his caused the injury to Adams. There was evidence sufficient to be submitted to the jury and to support the verdict; therefore there was no error of the trial court in denying the motion for a nonsuit and in refusing to direct a verdict in favor of defendant.

As stated in the brief of counsel for defendant, the instructions excepted to involve the same questions and are governed by the same principles of law as those raised by the motions, to which reference has been made, and they do not require separate discussion. Suffice it to say a careful examination of the charge to the jury leads us to believe that the case was fairly and plainly submitted to them. As to additional questions, the same may be said of defendant’s motion for a new trial as presented to us in its brief.

Finding no error in the record, the judgment of the lower court is affirmed.

Affirmed.

Mr. Chief Justice Moore, Mr. Justice Eakin and Mr. Justice Harris concur.