Busch v. Robinson

81 P. 237 | Or. | 1905

Mr. Chief Justice Wolverton

delivered the opinion.

1. The first, assignment of error relates to the overruling of a demurrer to the complaint, and it is now urged that it is insufficient after verdict, in that it does not state that plaintiff was without knowledge of the defective and broken board while using the platform, or, stating the contention more precisely, that having shown that the defendant suffered the platform whereon she was to stand in doing her work to become and remain in a broken condition, without having stated more., it must be assumed that the defect was open and obvious, and, of course, that the plaintiff saw and observed it, and therefore had knowledge of it, and that, in proceeding to work on the platform with .such knowledge, she voluntarily assumed the risk, and hence that the defendant is not liable upon the face of the complaint. An assumption of risk is characterized as a sort of estoppel against claiming damages for injuries received, which arises from contract, by engaging or consenting to work about a defective machine or with a defective appliance: Beach, Contrib. Neg. § 16. It is urged that it is inferable from the showing that the platform was broken or defective and had a hole in it that plaintiff.had knowledge of the condition, but such a result does not necessarily follow. The manner of the break or defect is not further or specifically described. We may assume that plaintiff knew of the knothole or the knot, as some of the witnesses indicate it was, and yet she may not have known or realized the real extent or dangerous character of the defect. If the complaint had described the imperfection as the testimony tends to show it to have, existed, it was rather of a latent character than one open and obvious'to the sense of sight, and only made itself fully manifest under the tread of the foot. This serves to demonstrate that the inference of knowledge, cannot be certainly deduced from the specifications of the defect, and after verdict we think the complaint is sufficient.

2. The next question in the order of trial arises upon the admission over objection of certain testimony of Dr. C. J. Smith. After describing the extent of the injury to the plaintiff’s hand, and that there was a webbing of the fingers down to the middle joint, he testified that the cosmetic effect of the hand could be improved by an operation dividing the fingers again so that she could wear a glove; that, while it would probably not improve the usefulness of the hand, it would much improve its appearance ; and that the reasonable charges of a surgeon for performing the operation would be about $100. He further testified, over objection, that it would be better for the plaintiff, to go to a hospital during the operation and treatment, and that the expense there would be two dollars a day for about 30 days. The objection to this testimony is that the expense attending the further treatment of plaintiff’s hand to improve, its appearance is not a proper element of damages for flip jury’s consideration. It would seem that the operation or further treatment and the expense attending it would be but the natural and probable result of the injury — as much so, almost, as it was necessary to employ a surgeon in the first instance to secure proper treatment for saving the hand, if possible. It was therefore within the rule for the measure of damages: 30 Am. & Eng. Enc. Law (3 ed.), 157.

3. The next question in such order arises upon the motion for a nonsuit. Much the same argument is advanced for defendant in support of the motion as in support of the assignment of .error with relation to the demurrer, but it is supplemented by the further contention that plaintiff was guilty of contributory negligence. It was the duty of the defendant to furnish the plaintiff a safe place in which to work, and safe appliances to work with. This, as a principle of law obtaining between master and'servant, is conceded. The contention involves three elements of inquiry: (1) Was the defect open and obvious? If not (3), did the plaintiff have knowledge of it, and continue in her employment with such knowledge ? and (3) did the defendant have knowledge thereof, or should he have known of it if he had been reasonably diligent and cautious in observing the condition of the machine and its appliances, for the protection of his employees?

All these are matters of fact for the determination of the jury. The testimony of plaintiff would indicate that the defect was not open and obvious, as she had not observed it prior to the accident; and, as described by her and Mrs. Lewis, it. was latent in character, rather than otherwise. Although Mrs. Lewis had taken note, of it previously, her testimony, to say the least, was susceptible of different inferences in that relation, and was. properly for the jury, and not for the court.

As it pertains to the negligence of the plaintiff, it is said she should not have been tiptoeing and peering about, looking for the girl who had deserted her post, but should have gone around the machine to find her, bnt this is only matter of argument upon the testimony for the persuasion of the jury. It was certainly not negligence per se for her to do this in pursuance of her duty to supervise the work of those helping about the machine. If she could see the girl from where she stood, and call her back to her work, it would certainly have been as expedient for her to have done so as to have left her own work and gone after her. The discussion simply serves to demonstrate that the question was one of fact purely for the jury.

About the last element, suffice it to say that there was testimony submitted to the jury having a tendency to show that, if the defendant did not have actual knowledge of the defect, he could have known of it' if he had taken proper precautionary measures. The legal principles applicable have been .settled by the decisions of this court, and it is unnecessary that we re-enforce them by further discussion: Wild v. Oregon Short Line Ry. Co. 21 Or. 159 (27 Pac. 954); Johnston v. Oregon Short Line Ry. Co. 23 Or. 94 (31 Pac. 283); Stager v. Troy Laundry Co. 38 Or. 480 (63 Pac. 645, 53 L. R. A. 459); Miller v. Inman, 40 Or. 161 (66 Pac. 713); Duff v. Willamette Iron Works, 45 Or. 479 (78 Pac. 363, 17 Am. Neg. Rep. 121).

4. Another assignment of error relates to the striking out of an answer made by Miss Neil, a witness for the defendant. She testified without objection that she calle.d on the plaintiff a few days after her injury, and talked with her about her hand; that «he told her about the matter of the accident; that she did not remember the exact words plaintiff used about being hurt, but that she gave witness the impression that it was her carelessness that caused the accident that caused the injury to her hand. She was then asked the following question: “And the substance of her conversation was that the accident happened through her own carelessness ?” An objection to the question being sustained, she was again asked: “Was that the substance of her conversation?” And she answered: “Yes, sir.” It was this answer that the court struck out, and of'which complaint is made. Two reasons exist why the action of the court was not prejudicial error: (1) The substance of the conversation had already gone to the jury without objection; and (2) she should have been asked to .give, the conversation, or at least the substance of it, so that the manner of the question was obnoxious because leading.

■ Another exception was saved to a question propounded to Mrs. Millie Busch, on rebuttal, intended for the impeachment of J. C. Boothby, a witness for defendant, in one phase of his testimony. It was not well taken, however, as the proper ground for the question appears to have been laid.

5. Exceptions were taken to instructions numbered 1 to 7, inclusive, upon the ground that under the testimony they are abstract and without speciál application to the case. The reason urged why they are abstract is that the plaintiff was not an ordinary employee, but a departmental manager or superintendent, and was charged with the same knowledge, care and precaution as the general manager. This is a misapprehension of the status of the case. The plaintiff was given supervisory control about the machine. She says:

“I was head girl on the machine. * * It was my duty to see that the girls were all at work. * * He [Eobinson], as a rule, was superintending the whole laundry, and has been all the time.”

On cross-examination she continues:

“I was foreman of the machine. * * I was head lady. * * I was in charge of the whole thing and the six girls. * * My business was to look after the machine, to see that the work yi as done on it, and that the girls were working. * * It was my duty to see that the girls were employed.”

But her control did not extend, as Yve infer, to keeping the machine in order or to supervising its management. That was left to the defendant himself, who retained general supervisory control over his entire laundry business. To say the least, hero Avas matter of inquiry for the jury, and, being such, the instructions Avere not vulnerable to the'objections.

It is also urged here that the defects complained of Avere open and obvious, but this we have found to be also a question for the jury.

6. The next assignment of error is relative to the instructions requested by defendant, namely:

“There is no rule of laAV which places a Avoman under any different circumstances than a man, with reference to the dangers which she may be exposed to in working for an employer. She is subject to the. same rules and conditions, and the same rule of law applies to her that applies to a man. It is her duty to observe and protect herself against dangers which are plainly obvious, or which ought to have been observed and noticed. If she suffers any injury by reason of her failure to observe the dangers which are in sight, she cannot recover.”

As counsel concede, however, the trial court was not bound to give this instruction. It was requested, we gather, on account of the argument of counsel for plaintiff to the jury to the effect that a woman was not as thoughtful as a man, but was controlled and governed more by impulse. There was, however, no testimony in the case upon the subject, and the instruction was not vital to' any question made on the trial.

Finding no error, the judgment of the trial court will be affirmed. Aeeirmeb.