Caraduc v. Schanen-Blair Co.

133 P. 636 | Or. | 1913

Mb. Justice Bean

delivered the opinion of the court.

1. There were no contractual relations existing between the plaintiff and the defendant. The plaintiff-was rightfully upon the premises. The defendant company owed a duty to the plaintiff to abstain from creating a nuisance er a condition in the building that would be likely to injure him. It was the duty of the defendant to use reasonable care and precaution in placing the 'stone near the building, and in maintaining it there.

2. At the close of plaintiff’s evidence, counsel for defendant moved the court for a nonsuit, which was denied, after which defendant’s counsel introduced evidence and requested the court to instruct the jury to find a verdict for the defendant. These rulings are assigned as errors. In view of the rule that an order overruling a motion for a nonsuit will not be disturbed when the omission, if any, is subsequently supplied by either party, the adequacy of the motion should be considered with reference to the entire record, so that both of these assignments of error may properly be considered together: Trickey v. Clark, 50 Or. 516 (93 Pac. 457); Crosby v. Portland Ry. Co., 53 Or. 496 (100 Pac. 300, 101 Pac. 204); Taylor v. Taylor, 54 Or. 560, 568 (103 Pac. 524).

3. There was a conflict in the- evidence as to whether the stone was placed upon its edge with its weight resting on a solid foundation, that is, with the plank supporting it on a cement sidewalk — or whether there was underneath the plank, between it and the sidewalk, about eight inches in depth of debris, consisting of irregular shaped stones, bricks, lumber and earth, making the foundation unstable. Mr. W. M. Blair, secretary of the defendant company, testified to the effect that on the evening of the day on which the stone was deposited it was resting on planks solid and safe; that there was nothing between the plank the stone rested upon and the cement sidewalk that he could see; that he could not see underneath the plank; that he saw the stone in the same place every day until the day of the accident. Andy Bowley, witness for defendant, testified that he delivered the stone at the Lincoln high school on the 17th day of August; that he left it resting, one end on the foundation of the building, and the other end on the plank, and that the plank rested on the sidewalk; that the stone was in a safe condition. There was a direct conflict in the evidence upon this point, and it therefore became a matter for the jury to determine how the stone was placed and whether it was in a reasonably safe condition, or was so situated that there was danger of its falling and injuring whoever might lawfully be within its reach: Conlon v. Eastern R. Co., 135 Mass. 195; Cummings v. National Furnace Co., 60 Wis. 603 (18 N. W. 742, 20 N. W. 665); Sheridan v. Foley, 58 N. J. Law, 230 (33 Atl. 484).

If the jury believed the testimony of the plaintiff, they might reasonably have found from the evidence that the stone was left in an insecure and dangerous position; and that its weight naturally displaced the debris, and caused it to fall and injure plaintiff. There was no error in submitting the cause to the jury. The defendant’s theory of the case was that the stone was deposited solidly upon planks laid upon a level sidewalk in a safe position. This was fairly submitted to the jury, and they found to the contrary.

4. In considering a motion for a nonsuit every reasonable inference from the evidence must be deduced in favor of the plaintiff, and those facts must be assumed to be true which the jury might fairly find from the evidence: Putnam v. Stalker, 50 Or. 210, 212 (91 Pac. 363); Sullivan v. Wakefield, 59 Or. 401, 404 (117 Pac. 311).

5, 6. The court is justified in taking a case away from the jury only when the presumption and evidence of negligence is overcome by undisputed evidence: Spaulding v. Chicago & Northwestern Ry. Co., 33 Wis. 582; Scarpelli v. Wash. Water Power Co. (Wash.), 114 Pac. 870. Under Article VII, Section 3, of the Constitution, when there is any competent evidence upon all the issues to support a verdict, it should not be disturbed. We cannot affirmatively say that there was no evidence to support this verdict.

7. It is contended by counsel for the defendant that the court erred in applying the doctrine of res ipsa loquitur, and in instructing the jury in regard thereto. In defining this the court said in substance to the jury: “That is a rule of evidence, and is simply intended to assist the jury in reaching a conclusion on the facts. * * The plaintiff is always obliged to prove his case by a preponderance of the testimony — that is, by a weight of the testimony — and, if he does not, then you cannot find in his favor, because he has alleged negligence, and he must prove negligence and prove the negligence that he alleged.” The court instructed the jury in effect that in reaching a conclusion upon that point, if the stone remained in the condition in which the defendant left it, the fact that it fell called for some explanation from the people who put it there; that they could take the circumstance of the falling of the stone into consideration to find out where the weight of the testimony was; that that was the only purpose for which they could use it. It is therefore clear that under the instructions of the court the question of negligence was not submitted to the jury solely upon the above circumstance, but with all the other evidence. We find no error in the instruction. In Boyd v. Portland Electric Co., 41 Or. 336, at page 343 (68 Pac. 810, at page 813), in discussing the application of the rule res ipsa loquitur, referring to the case of Bahr v. Lombard, 53 N. J. Law, 233 (21 Atl. 190, 23 Atl. 167), Mr. Justice'Wolverton said: “There must be something, however, in the facts proven in each case that speaks of the negligence of the defendant; and the question to be propounded and solved in every such case is, Do the proofs speak through inference and presumption of the negligent conduct of the defendant1?” Also at page 346 of 41 Or. (page 814 of 68 Pac.) : “But where the evidence of the plaintiff has affirmative significance in establishing negligence, and the negligence complained of is not left wholly to inference or presumption, the question becomes a matter for the jury, to be determined by the preponderance of evidence”: See, also, Wittenberg v. Seitz, 8 App. Div. 439 (40 N. Y. Supp. 899); Mullen v. St. John, 57 N. Y. 567 (15 Am. Rep. 530); Smith v. Boston Gas Light Co., 129 Mass. 318; Griffin v. Manice, 166 N. Y. 188, 196 (59 N. E. 925, 82 Am. St. Rep. 630, 52 L. R. A. 922; Hill v. Tualatin Academy, 61 Or. 190 (121 Pac. 901).

8. Error is also predicated upon the defining by the trial court of an inference and a presumption as evidence. Defendant contends that a presumption is not evidence, and only relates to a rule of law. Whatever may be the theory of text-writers upon this subject, Section 793, L. O. L., denominates inference and presumption as indirect evidence. Section 794, L. O. L., says that an inference is a deduction which the reason of the jury makes from the facts proved, without an express direction of law to that effect. Section 795, L. O. L., declares presumption to be a deduction which the law expressly directs to be made from particular facts. This would ■ authorize such a definition. We find no prejudicial error in the instructions complained of. The cause was fairly submitted to the jury.

The judgment of the lower court is therefore affirmed. • Affirmed.

Mb. Chief Justice McBride, Mr. Justice Eakin and Mr. Justice McNary concur.