Duntley v. Inman, 70 P. 529

Duntley v. Inman

70 P. 529 | Or. | 1902

Mr. Justice Bean,

after stating the facts, delivered the opinion of the court.

1. The plaintiff requested the court to charge the jury that “There is a rule of law that whenever a thing that causes injury is shown to be under the management of a defendant, and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from the want of care. So, in the case on trial, if you find that the pulley attached to the planing machine was under the management of the defendant, and that the pulley broke, which could not have happened in the ordinary course of things, if those who had the management and control of that pulley used proper care, then, if in that event there is no explanation on the part of the defendant as to breaking of said pulley, you may conclude that the breaking of the pulley arose from the want of care. ’ ’ This was refused, but in its general charge the court instructed the jury that “Negligence is never presumed. Plaintiff in this case' has charged it, and she must prove it. It cannot be inferred, from the mere .fact that the *340decedent was injured or the accident happened, that the defendant was negligent.” The refusal to give the instruction requested, and the giving of the one quoted, constitute the principal assignments of error on this appeal, and present the question whether proof of the death of the plaintiff’s intestate from the breaking of the pulley, in the absence of any explanation by the defendant as to the cause of such breaking, is itself evidence of a want of care on its part. In an action by a passenger against a carrier, proof of the injury itself is prima facie evidence of negligence, for the contract is to carry safely. But in an action by a servant against his master, this rule does not obtain. Before a servant can recover for an injury received by him, he must allege and'prove that it was caused by the negligence of the master. It is the duty of the master to provide his servant with a reasonably safe place to work in, reasonably safe tools and appliances to work with, and to exercise reasonable care and diligence to keep them in that condition. The presumption is that he has discharged this duty, and this presumption can only be overcome by affirmative proof, either direct or eireiimstantial, of negligence on his part: Wood, Mast. & Serv. (2 ed.) § 382. In some instances the circumstances attending the accident may be sufficient, if unexplained, to justify the jury in drawing an inference of negligence. In such eases, however, the physical facts themselves are evidential, and there is what the law terms evidence of negligence, in conformity with the maxim, Bes ipsa loquitur. But this maxim is a mere rule of evidence and not a presumption of law: Boyd v. Portland Elec. Co. 40 Or. 126 (7 Am. Electl. Cas. 661, 66 Pac. 576); same case, 41 Or. 336 (68 Pac. 810). It is, as said by Mr. Justice Holmes in Graham v. Badger. 164 Mass. 42, 47 (41 N. E. 61), “merely a short way of saying that, so far as the court can see, the jury, from their experience as men of the world, may be warranted in thinking that an accident of this particular kind commonly does not happen except in consequence of negligence, and that therefore there is a presumption of fact, in the absence of explanation *341or other evidence which the jury believe, that it happened in consequence of negligence. ’ ’

There is some controversy in the authorities as to whether under any circumstances the doctrine is applicable in an action by an injured servant against his master. But if it can be invoked in such an action at all, it is manifest that, when the servant is injured from a defect in the machinery operated by him, it can apply only where the physical facts themselves speak of the negligence of the defendant, and not, as in the case at bar, merely show the happening of the accident. The mere circumstance that a servant is injured by defective machinery, or appliances used by him does not prove negligence or want of care'on the part of the master: 1 Bailey, Mast. & Serv. § 1597; 20 Am. & Eng. Enc. Law (2 ed.), 87; Simpson v. Locomotive Works, 139 Pa. 245 (21 Atl. 386); Texas & Pac. Ry. Co. v. Barrett, 166 U. S. 617 (17 Sup. Ct. 707); Patton v. Texas & Pac. Ry. Co. 179 U. S. 658 (21 Sup. Ct. 275); Wojciechowski v. Spreckles Ref. Co. 177 Pa. 57 (35 Atl. 596); Brownfield v. Chicago, R. I. & P. R. Co. 107 Iowa, 254 (77 N. W. 1038); Olson v. Great North. Ry. Co. 68 Minn. 155 (71 N. W. 5.)

2. The happening of the accident may perhaps tend to show that the machinery was defective, but this alone is not sufficient to entitle the servant to recover. He must go further, and show not only that the injury resulted from a defect in the machinery, but that the defendant had notice of such defect, or by the exercise of ordinary care could have known, and was therefore guilty of negligence. “The mere fact that the machinery proves defective,” says Mr. Wood, “and that an injury resulted therefrom, does not fix the master’s liability. Prima facie it is presumed that the master has discharged his duty to the servant, and that he was not at fault. Therefore the servant must overcome this presumption by proof of fault on the master’s part, either by showing that he knew or ought to have known of the defects”: Wood, Mast. & Serv. (2 ed.) § 368. A master is not an insurer of the safety of his servant, and is therefore not bound to furnish absolutely safe appli*342anees or machinery. His duty in this regard is discharged when he exercises reasonable care and caution to provide such machinery or appliances, and to keep them in that condition, and the presumption is that he has discharged this duty. He is only liable for an injury to a servant through a defect in the machinery or appliances which was or ought to have been known to him and was unknown to the servant; and, in an action therefor, it is necessary for the servant to prove, not only the defect, but the knowledge or means of knowledge thereof on the part of the master. The law on that subject is well settled in this court. Kincaid v. Oregon S. L. Ry. Co. 22 Or. 35 (29 Pac. 3), was an action by a servant against his master to recover damages for injuries received on account of defective appliances, wherein Mr. Justice Lord, in speaking for the court, said: ‘ ‘ It is not enough for the party to merely show the injury or accident, but he must produce some evidence tending to show that the negligence of the defendant caused it. This is not one of the cases where proof of the accident is prima facie evidence of negligence, but it is one of the cases where the law presumes a proper performance of duty upon the part of the defendant, and the burden is imposed upon the plaintiff to show its negligence in reference to the particular matter alleged in producing the injury.” And in Nutt v. Southern Pac. Co. 25 Or. 291 (35 Pac. 653), — a similar case,— the same justice says: "The defendant is not a guarantor that the tools, implements, or other appliances which it provides for the use of its employes are absolutely safe or free from all defects. Neither individuals nor corporations are bound to insure the absolute safety of the instrumentalities which they furnish their employes for use in their employment. Their duty is discharged when they exercise reasonable care and diligence in providing their employes with reasonably safe tools and appliances with which to work. ’ ’ To the same effect, see Walsh v. Oregon Ry. & Nav. Co. 10 Or. 250; Knahtla v. Oregon S. L. Ry. Co. 21 Or. 136 (27 Pac. 91). There was therefore no error in instructing the jury that the plaintiff must prove the negligence alleged, or in refusing to instruct that the *343breaking of tbe pulley, if unexplained by tbe defendant, was itself evidence of the want of care on its part.

3. It is also contended that the court erred in striking from the complaint the allegation that the defendant failed to provide a belt shifter or other suitable appliance for transferring the belt from the loose to the tight pulley. There is no allegation as to what would be a suitable appliance for that purpose, or that there was one any better than that actually used by the deceased, or, indeed, that the accident was caused by the defendant’s failure to furnish a suitable belt shifter. The deceased was supplied with an instrument for that purpose which seems to have been safe and suitable when properly used, and, as there is no averment that he made any objection to its use, the defendant is not liable because it failed to furnish a better one. It is not the duty of the master to furnish the best or latest appliances for the use of his servant. He may conduct his business in a manner most agreeable” to himself, using either old or new machinery; and an employe who enters his service with knowledge of the circumstances attending the employment cannot complain of his master’s customs or habits, nor recover for injuries sustained in and resulting- from that particular service. If the machinery and appliances are such as are ordinarily used, and reasonable care is exercised to see that they are safe and suitable for the purposes intended, and are kept in proper condition, so that no harm results to the servant for want of repair, the master’s responsibility in the premises ceases, and he is not liable to an employe for injuries happening to him in the use of such machinery and appliances: 20 Am. & Eng. Enc. Law (2 ed.), 77; Wood, Mast. & Serv. (2 ed.) § 331; 1 Bailey, Mast. & Serv. § 68.

4. Upon the trial one Erickson was called as a witness for the plaintiff, and testified that he was a millwright employed by the defendant at the time of the accident; that his duty was to repair and look after the pulleys, except those on the planer; and that he examined the broken pulley after the accident, but was not present at the time. He was thereupon asked to state his opinion as to what caused the pulley to break, and the *344refusal of the court to permit him to answer is assigned as error. If the opinion of the witness upon this question was competent at all, which is at least doubtful (Houston v. Brush, 66 Vt. 331, 29 Atl. 380), it was because he was an expert, and entitled to testify as such. But there was no evidence that he possessed any special knowledge upon the subject. He had not had any experience in the manufacture of ironwork, or in testing machinery of that kind, and therefore there was no abuse of discretion in refusing to permit him to express an opinion upon a question of such importance in the case.

5. One Wilson, who was employed by the defendant on the night shift about the time of the accident, was asked as to whether he had ever known any of the pulleys on the planers in the defendant’s mill to be tested by tapping with a hammer, and it is insisted that the court erred in refusing to allow him to answer. The evidence shows that the witness went to work at 7 o’clock in the evening, and quit about 6 in the morning, and therefore the fact that he had never seen the pulleys tested is no evidence that a proper inspection and examination thereof had not been made.

6. Mr. Inman, the president of the defendant corporation, testified, among other things, that the pulley and belt on the planer operated by the deceased had been running for about four years, and that during that time no accident of any kind had occurred. He was thereupon asked on cross-examination whether it was not a fact that there had been at least two men killed and two or three others crippled or injured in his mill' during the last three or four years. Error is assigned on the ruling of the trial court in sustaining an objection to this question. This was manifestly improper cross-examination. Mr. Inman’s testimony in chief was confined to the planer in controversy, and no rule of law of which we have any knowledge would permit the plaintiff to extend the inquiry to embrace the history and circumstances of all the accidents happening in the mill during the four years previous to the trial. The judgment of the court below is affirmed. Affirmed.