34 Mont. 151 | Mont. | 1906
Lead Opinion
delivered the opinion of the court.
This is an action for damages for personal injuries. The plaintiff had judgment in the district court, and the defendant appeals from the judgment, and from an order denying its motion for a new trial.
The plaintiff was a carpenter employed by the defendant about the construction of a planing-mill in Butte. The defendant had caused large quantities of lumber to be brought from its lumber-yard for use in constructing the building. This lumber had been placed in piles near the building being constructed. The negligence is charged as follows: “That on or about the nineteenth day of November, 1901, in depositing lumber for said construction work, the defendant, in negligent disregard of its duty, through its agents, servants and employees, piled a large quantity of heavy timbers, 2"xl0"x20' in size, in so negligent a manner that the pieces in the outside tier or pile of said timbers were laid in one continuous vertical course, one piece upon and above another, to a great height, to wit, the height of about six feet, and said outside tier or pile was in no way tied or bound to the remainder of the said pile, nor in any manner braced or supported to prevent the same from falling, but the same was so negligently piled that it was in such a condition of unstable equilibrium that it required but slight force to overthrow and to cause said outside tier or pile to fall away from the remainder of said pile.”
“That defendant knew, or in the exercise of due diligence would have known, of the dangerous condition of said pile, but in negligent disregard of its duty in the premises, it permitted said pile to be and remain in said dangerous and unstable condition, until the twentieth day of November, 1901, when plaintiff, in the course of his said employment, was ordered by said foreman to carry to said mill certain lumber from another pile adjoining the pile last above described, and distant therefrom about four feet; that at said time plaintiff was ignorant of the dangerous, unstable and top-heavy condition of said outside
Upon the trial plaintiff offered evidence tending to prove that one Price was vice-principal of defendant in charge of the work of constructing the planing-mill; that plaintiff was injured while obeying specific instructions received from Price; that there were not any cross-strips or ties used in piling the lumber which fell; that it fell without fault of plaintiff; also evidence showing the particular circumstances attending the accident and the extent of plaintiff’s injury. Plaintiff then offered the evidence of certain lumber handlers engaged by the defendant at the time of the injury as follows:
Hoover: “If we have a large order, where we have to pile it up high, we use strips, cross-strips, and that binds the whole pile so it won’t fall down. * * * There was none of that lumber piled with strips between it. We were told once not to take too much time. Mr. Price told us that. * * * I would put strips on a big load going out. I had to put strips on to bind it. When I had a big pile I put strips on, one on top and one on the bottom. On the small piles I would put on enough to be safe of the strips. * * * The order that Mr. Price gave me was not to take any pains in the piling of it. * # * I believe we put strips on lumber that I hauled to the planing-mill on the first couple of loads that we hauled in there, and continued until Mr. Price came around there and told us not to. ’ ’
Apperson: “He [Price] told Mr. Baymond and I together to pile the lumber off, any way to get it off. It was not going to
Plaintiff then rested. Defendant moved for a nonsuit on the following, among other grounds: “For the further reason that it has not beén shown, by evidence of any kind or character, that the defendant Largey Lumber Company was at any time guilty of any negligence of any kind or character.” This motion was overruled, and defendant introduced evidence in its behalf tending to show that it exercised reasonable care in piling the lumber.
It may be conceded that, unaided by any presumption, the evidence offered by plaintiff is insufficient to charge the defendant with negligence. But counsel for respondent invoke the doctrine of the maxim “lies ipsa loquitur,” and insist that this case as made by the plaintiff presents an instance wherein the presumption of defendant’s negligence arises from the proof of the accident. Of course, the general rule of law is that negligence is not inferable from the mere occurrence of the accident; but to this rule is- the well-understood exception that, where the thing which causes the injury is shown to be under the management and control of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have such management and control use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from the want of ordinary care by the defendant. (1 Shearmán & Redfield on Negligence, see. 59.) Under such circumstances proof of the happening of the event raises a presumption of the defendant’s negligence, and casts upon the defendant the burden of showing that ordinary care was exercised. This rule has- been invoked in numerous similar cases. (2 Labatt on Master and Servant, sec. 834; Solarz v. Manhattan Ry. Co., 8 Misc. Rep. 656, 29 N. Y. Supp. 1123; Green v. Banta, 48 N. Y. Super. Ct. 156, affirmed on appeal, 97 N. Y. 627; Guldseth v. Carlin, 19 App. Div. 588,
For the purpose of the motion it must be conceded that the evidence offered by the plaintiff proved that the defendant, through its vice-principal, Price, not only had actual charge and control of the piling of this lumber, but actually directed the manner in which it should be piled, and gave directions that no particular pains should be exercised and' that cross-strips or ties should not be employed. The evidence further shows that the plaintiff was directed by Price to go to the very place where he was injured, and it is self-evident that, if properly piled, the lumber would not have fallen of its own accord.
We think the doctrine of the maxim “Bes ipsa loquitur” is applicable to the facts of this case, and that the evidence offered by the plaintiff, aided by the presumption which this doctrine raises, made out a prima facie case to go to the jury, and the motion for nonsuit was properly denied. We do not think there is any merit in the other grounds of the motion.
But it is said that the danger to plaintiff from this pile of lumber was obvious and apparent, and that the plaintiff assumed the risk. Whether it was apparent to him or equally as apparent to bim as to Price, under the facts of this case, were questions for the jury. This subject has been before this court so recently, and so carefully considered, that a reference to the ease is sufficient to dispose of the contention now. (McCabe v. Montana Central Ry. Co., 30 Mont. 323, 76 Pac. 701.)
In Carlson v. Northwestern Tel. Exch. Co., 63 Minn. 428, 65 N. W. 914, it is said: “Where a large number of men are employed upon the same work, it is essential that reasonable orders regulating their conduct and assigning to them proper places in
There is some contention that Price was a fellow-servant with Hardesty; but under either rule announced by this court in Allen v. Bell, 32 Mont. 69, 79 Pac. 582, for determining this question, we think Price was clearly shown to be a vice-principal.
Objection is made to the court’s giving an instruction numbered 8, relative to the duty of the master to exercise ordinary care to provide for his servant a reasonably safe place in which to work. We do not approve of the language employed in this instruction, but this is not the objection urged by the appellant. Its criticism is that an instruction on the subject was inapplicable in this ease, for the reason that the plaintiff was engaged in making a place in which to work, and Shaw v. New Year Gold Min. Co., 31 Mont. 138, 77 Pac. 515, is cited in support of this plea. But the doctrine of that case we think is not applicable here. This plaintiff was directed by the defendant to work in a particular place outside of the building, and while executing such order was injured. The work of framing timbers and placing them in a building is not analogous to the work of extending a tunnel.
Instruction No. 1 is criticised, because it does not fully set forth the issues to be determined. The court was only attempting to define the issue in very general terms, and in any event
There is some criticism made of instruction No. 7, but that instruction only attempted to limit plaintiff’s recovery to the amount claimed in his complaint.
Instructions 3, 4 and 5 state the rules of law as announced in sections 2660, 2661 and 2662 of the Civil Code.
Errors are also assigned upon the refusal of the court to give certain instructions requested by the defendant. No. 18 comments upon the evidence and would have been erroneous if given. Nos. 19 and 29 were properly refused. The rule announced in the Carlson Case above disposes of this contention. Nos. 22 and 23 are directly opposed to the doctrine announced by this court in the Allen-Bell and McCabe Cases, respectively, and No. 24 is fully covered by instructions 11, 12, 14 and 15, given by the court.
While the cross-examination of the witness Haines was probably with respect to an immaterial matter, it seems impossible that any injury could have resulted to defendant. We have examined the other assignments, but think they are without merit. The case seems to have been fairly submitted to the jury, and its verdict should not be disturbed.
The judgment and order denying defendant a. new trial are affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Milbubn concur.
Rehearing
On Rehearing.
delivered the opinion of the court.
After the opinion in this case was delivered, appellant filed a motion for a rehearing, in support of which it was earnestly urged that this court had not considered sufficiently its objections to three instructions given by the trial court embodying
In 1871 the Territory of Dakota adopted a Civil Code embodying the provisions of our sections 2660, 2661 and 2662, and also adding to the section corresponding to our section 2661 the following: “Nor in consequence of the negligence of another person employed by the same employer in the same general business, unless he has neglected to use ordinary care in the selection of the culpable employee.” (General Laws, Dakota Territory, 1870-71, secs. 1005, 1006 and 1007.) These sections were continued in force and brought into the Revised Code of 1877 as sections 1129, 1130 and 1131 of the Civil Code, and into the Compiled Laws of 1887 as sections 3752, 3753 and 3754 of the Civil Code. Upon the admission of the states of North Dakota and South Dakota, the same provisions were continued in force in each state and are to be found in the Revised Codes of North Dakota of 1899, as sections 4095, 4096 and 4097, and in the Revised Code of South Dakota of 1903, as sections 1448, 1449 and 1450.
In 1872 the state of California adopted a Civil Code containing the same provisions as the Civil Code of Dakota Territory, as sections 1969, 1970 and 1971. The same provisions are found in the California Civil Code of 1897, and in Kerr’s Cyclopedic Codes of 1905, the sections being numbered the same as in the Civil Code of 1872.
These provisions first appear in our Civil Code of 1895. ¥e are unable to state whether our Code provisions were taken from the Code of California or from the Code of one of the Dakotas; and we are further unable to know why our Code omits the portion from section 2661 which is found in the correspond
It is worthy of note, in passing, that the arrangement of the respective Codes of all these states is precisely the same. Thus, the Civil Code contains four Divisions, and the arrangement, with the titles directly leading to the particular sections under consideration, is as follows:
Division III, “Obligations.”
Part IV of Division III, ‘ ‘ Obligations Arising from Particular Transactions.”
Title VI of Part IV, “Service.”
Chapter I, of Title VI, “Service with Employment.”
Article II, of Chapter I, “Obligations of Employer.”
This division of the Code into Divisions, Parts, "Titles, Chapters, Articles and Sections is one of the instrumentalities by which the Code may be construed, and the particular title of each of these subdivisions, which was arranged in the bill and adopted as a part' of the Code itself, may be referred to and considered in determining the meaning of such subdivision. (2 Lewis’ Sutherland’s Statutory Construction, see. 362, and eases-cited.) It is an elementary principle of statutory construction that all sections upon the same subject matter are to be taken as one law and construed together. (O’Neal v. Robinson, 45 Ala. 526.)
Sections 2660, 2661, and 2662, above, and the corresponding sections of the Codes of California and North Dakota and South Dakota, respectively, comprise all of Article II, Chapter I, Title VI, Part IV, Division III, and this Article has to da generally with the ‘ ‘ Obligations of the Employer. ’ ’ That is the one subject treated, and each of these three sections refers to-the same matter. Furthermore, as if to emphasize this, section 2660 specifically refers to 2661. The Code establishes the law of this state so far as it attempts to announce the law. It is supplemented by the common law of England. (Civ. Code,, sec. 4651.)
In the following cases the Dakota Codes referred to are considered: Herbert v. Northern Pac. R. Co., 3 Dak. 38, 13 N. W. 349, s. c. on appeal, 116 U. S. 642, 6 Sup. Ct. 590, 29 L. Ed. 755; Elliott v. Chicago etc. R. Co., 5 Dak. 523, 41 N. W. 758, 3 L. R. A. 363. In Ell v. Northern Pac. Co., 1 N. Dak. 336, 26 Am. St. Rep. 621, 48 N. W. 222, 12 L. R. A. 97, it is said: “We have assumed that our statutes on this question [Comp. Laws, sec. 3753] are only declaratory of the common law. But we do not decide whether they limit the liability of a master. They certainly impose upon him no greater responsibility than the common law, and, as the question of their restrictive force has not been discussed, we do not decide it.” (Gates v. Chicago etc. R. Co., 2 S. Dak. 422, 50 N. W. 907, 4 S. Dak. 433, 57 N. W. 200; McKeever v. Homestake M. Co., 10 S. Dak. 599, 74 N. W. 1053; Northern Pac. R. Co. v. Hogan, 63 Fed. 102, 11 C. C. A. 51; Northern Pac. Ry. Co. v. Hambly, 154 U. S. 349, 14 Sup. Ct. 983, 38 L. Ed. 1009.)
In the following cases the sections of the California Code are considered: Collier v. Steinhart, 51 Cal. 116; McLean v. Blue
It is also worthy of note that the term “indemnify” is used in each of the three sections above in the same relation and with the same evident meaning in each instance. In sections 2661 ;and 2662 the term “losses” is used, while in section 2660 the same thing is expressed by the use of the phrase “all that he necessarily * * * loses.” In Brown v. Central Pac. R. Co., 68 Cal. 171, 7 Pac. 447, s. c. in bank, 8 Pac. 828, decided in 1885, ten years before the adoption of our Civil Code, it was held that the provisions of section 1969 of the California Civil Code (our section 2660 above) were directly applicable to that particular case, which was one for damages for personal injuries between servant and master. We are unable to agree with counsel for appellant that the reference to section 1969 is dictum.
While in the former opinion in this case we merely approved without, comment the instructions given, which announced the law as embodied in sections 2660, 2661, and 2662, we are now, after further argument and consideration, more fully convinced that the instructions were properly submitted in this ease, and that the rules announced in those sections are directly applicable to an action of this character. The mere fact that the law as declared in section 2660 may possibly be applicable to a case of another character does not detract from its ap
The judgment and order denying the defendant a new trial are affirmed.
Affirmed.
