249 P. 627 | Or. | 1926
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *288 Defendant asserts there is no evidence of negligence and that its motion for a directed verdict should have been allowed. It is true there is no direct evidence as to what caused the marble shutter to fall, but this does not preclude recovery if, from all of the facts and circumstances surrounding the accident, a reasonable inference may be drawn that its falling was due to the failure of the defendant to exercise due care. The argument that there is no evidence the slab even fell does not impress us as worthy of much consideration in view of defendant's allegations that the "child climbed upon a ledge near *291 the opening of said vault, and pulled upon one of the handles of said marble slab * * and one end of same toppled over to the floor beneath." It is difficult to believe the defendant permitted this shutter to remain on the floor and that this small boy crawled under it in such manner that it required the strenuous efforts of three or four persons to get him out from under it. It is certain that the shutter fell. The pertinent questions are: Was its falling due to the negligence of defendant? Was such negligence the proximate cause of the woman's death? Has the estate by reason thereof sustained damage?
When a vault was not sealed, its shutter rested on a ledge about sixteen inches above the floor and, according to the testimony of E.M. Welch, president of the defendant company, was "tilted back about two inches and there was a wooden wedge at each corner at the top and on the ends." He also said: "The shutter in question was thirty inches wide, eight feet long and approximately one inch thick." It weighed about 300 pounds.
We think res ipsa loquitur applies. Defendant was operating a business open to the public for inspection. Friends and relatives of the dead were particularly welcome. Plaintiff's intestate and her son were not trespassers or bare licensees. They were at a place where they had a right to be and upon the implied invitation of defendant. It follows that the defendant was bound to exercise due care to avoid injuring them: Shobert
v. May,
"But when the cause of the accident is shown to be under the management of the defendant or his servants, 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 for the jury in the absence of explanation by the defendant, that the accident arose from the want of proper care."
As stated in Boyd v. Portland Elec. Co.,
"Res ipsa loquitur is a maxim of evidentiary potency and consequence and serves to imply or raise a presumption of negligence as a fact, when from the physical facts attending the accident or injury there is a reasonable probability that it would not have happened if the party having control, management, or supervision, or with whom rests the responsibility for the sound and safe condition of the thing, property, or appliance which is the immediate cause of the accident or injury, had exercised usual and proper care and precaution with reference to it."
In Sweeney v. Erving,
"In our opinion, res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict."
In our opinion, a prima facie case of negligence was established. Defendant offered no testimony to show what caused the shutter to fall. True, evidence was introduced tending to prove that these shutters were properly secured, but was the jury bound to accept this as conclusive on the question of negligence? From the record before us, we cannot say as a matter of law that this evidence overcomes the inference or presumption of negligence arising from the manner in which the accident happened: Coblentz v. Jaloff,
Goss v. Northern Pac. Ry. Co.,
It is urged that defendant could not reasonably anticipate that plaintiff's intestate would thus be injured. This may be true, but it is not necessary for plaintiff so to establish. It is sufficient if there is evidence tending to show defendant might reasonably have anticipated that some person rightfully in its place of business would be injured if the shutter fell to the floor: Voshall v. Northern Pac. Terminal Co.,
Having held there is evidence of negligence, we next proceed to the inquiry: Was such negligence the proximate cause of this woman's death? Unless the facts are undisputed, the question is one within the exclusive province of the jury to determine: Brady v. Oregon Lumber Co.,
It is urged there is no evidence of a pecuniary loss sustained by the estate. The record discloses that deceased was married and the mother of three children, aged six, seven and fifteen years, respectively. At the time of injury she was a strong, healthy and vigorous woman, thirty-eight years of age. Aside from numerous household duties, she earned $200 per year soliciting for the Spirea Corset Company. She also earned about $200 each year dressmaking. A boarder paid $35 per month. Her sister testified it would cost about $50 per month to secure a competent woman to take care of the children. We think this evidence warranted the jury in reaching the conclusion that the pecuniary net loss sustained to the estate was $2,500. Of course, there was more or less speculation in determining the probable net earnings of this woman. Life is, indeed, uncertain. We prosper to-day and lose to-morrow. As stated in Rorvik v.North Pac. Lumber Co.,
Error is predicated in permitting plaintiff to reopen the case twice for the purpose of offering additional evidence relative to the question of damages. *296
This objection goes to the order of proof. It is a matter of procedure resting within the sound discretion of the trial court:State v. Isenhart,
Defendant complains of an instruction given concerning the alleged negligence of the child in causing the slab to fall. Since there is no evidence that the slab was thus caused to fall, the instruction might be subject to criticism as being abstract, but it certainly was not prejudicial to the defendant. Indeed, if a marble slab weighing approximately 300 pounds could be pulled over by a child four years of age, it would be strong evidence, in our opinion, that it was not properly secured.
Exception is taken to a hypothetical question propounded to certain doctors, in that it assumed facts not in evidence. It is elementary that hypothetical questions to expert witnesses must be based on evidence in the record. When made, the objection was well taken, but the error was cured by the subsequent introduction of the evidence lacking at the time the question was asked. We see no objection to the question as invading the province of the jury.
There are other minor assignments of error relative to the admission of certain testimony, which we will pass as having no merit.
Plaintiff in his cross-appeal assigns error in reducing the judgment from $2,500 to $1,260. By virtue of Article VII, Section 3c of the Oregon Constitution, the Supreme Court has authority, where material error exists in a record, to retry the case and render such a judgment as, in its opinion, should have been *297
rendered in the court below. Hoag v. Washington-Oregon Corp.,
The judgment entered for $1,260 is reversed and the cause is remanded, with directions to enter judgment for $2,500 in favor of plaintiff.
REVERSED and REMANDED, WITH DIRECTIONS.
REHEARING DENIED.
McBRIDE, C.J., and BEAN, J., concur.
RAND, J., absent.
