Poole v. Tilford

195 P. 1114 | Or. | 1921

BEAN, J.

1, 2. The motion for a nonsuit and one for a directed verdict raise the same question. It is contended by counsel for defendants that at the time of the injury plaintiff was acting outside of the scope of his employment and that defendants’ request should have been granted. This is claimed on account of the fact that immediately before the accident plaintiff went across the street to mail his letter. The jury could reasonably conclude from the testimony that, although Poole was acting for himself in going to mail a letter, when he returned and took up his duties he was engaged in the furtherance of his master’s business, incident to his employment: Malloy v. Marshall-Wells Hdw. Co., 90 Or. 303, 305 (173 Pac. 267, 175 Pac. 659, 176 Pac. 589); Stool v. Southern Pac. Co., 88 Or. 350 (172 Pac. 101).

There was evidence adduced indicating that plaintiff in pursuing his regular duties descended in the elevator to the basement and extinguished the lights and brought the elevator back to the first floor. After mailing his letter he proceeded with his usual employment for the purpose of taking a passenger to the fifth floor of the building, and doing his janitor work, scrubbing the halls, and taking the paper out of the rooms. The defendants had neglected to install the “head-stop.” The plaintiff was projected into a concrete pit, to his permanent injury.

Plaintiff deposed thus:

“Q. Were your duties completed at the time for the day? Did you have other work?

“A. No, they wasn’t completed; I hadn’t did any work in the hall. I always mop the hall on every floor and take the paper ont, after I did the hauling. I used the elevator for that purpose.

“Q. You would go from one floor to another with the elevator

“A. Certainly.”

This question was properly submitted to the jury by that part of the charge reading:

“I further instruct you that if you find from the evidence in this case that plaintiff was on an errand for himself at the time he went to post a letter, and that he undertook to use said elevator in coming down to the main floor, and in coming up to the main floor for some purpose of his own, then he was acting outside the scope of his employment and your verdict should be for the defendants. * *

“If you believe he used the elevator to carry on his work as janitor and for the purpose of furthering his master’s business, then the court will say to you as a matter of law, that he was engaged in his master’s business, and would not be precluded from recovering on that account.”

Defendants complain of the latter part of the charge quoted, contending there was no evidence from which to conclude that the plaintiff was using the elevator at the time to carry on his master’s business. If the jury believed the plaintiff’s story, they could fairly conclude that at the time of the injury Poole was proceeding with his regular work for defendants. This was for the determination of the jury. There being competent evidence supporting their finding in this respect, the question cannot be re-examined by this court. There was no error in denying the motions and submitting the case to the jury.

3. Error is predicated upon the court’s refusing to allow C. E. Heft, a witness for the plaintiff, to answer the following question upon cross-examination:

“Now, it is a fact, isn’t it, that there is not an elevator in town that you can’t get in from the outside ? ”

The Employers’ Liability Act, Section 6785, Or. L., requires all shafts, well, floor opening, and similar places of danger, to be closed, and that all persons having charge of, or responsible for, any work involving a risk or danger to employees or to the public shall use every device, care and precaution which is practical to use, for the protection and safety of life and limb, limited only by the necessity of preserving efficiency, without regard to cost. Ordinary care, or that precaution used by others will not suffice to satisfy the mandate of the statute: Camenzind v. Freeland Furniture Co., 89 Or. 158, 173 (174 Pac. 139). There was no error in excluding the proffered testimony.

4. Defendants assert error for the reason that the court charged the jury under the Employers’ Liability Act, and refused to instruct under the common law in regard to assumption of risk. The complaint clearly comes within the provisions of the Employers ’ Liability Act, and the testimony supports the complaint. Therefore there was no error committed in charging the jury according to the statute and refusing to allow the jury to consider assumption of risk as a defense: Schulte v. Pacific Paper Co., 67 Or. 334 (135 Pac. 527, 136 Pac. 5); Oberlin v. Oregon-Wash. R. & N. Co., 71 Or. 177 (142 Pac. 554); Davis v. Carlton Lumber Co., 77 Or. 441, 444 (151 Pac. 650) ; Gunnell v. Van Emon Elevator Co., 81 Or. 408, 414 (159 Pac. 971); Tabor v. Coin Machine Mfg. Co., 85 Or. 194, 196 (166 Pac. 529); Nelson v. Brown & McCabe, 81 Or. 472, 475 (159 Pac. 1163); Marks v. Columbia County Lumber Co., 77 Or. 22, 28 (149 Pac. 1041, Ann. Cas. 1917A, 306).

5. Error is predicated upon the ruling of the court in admitting the testimony of A. P. Armstrong as to plaintiff calling his attention to the dangerous condition of the elevator doors during the time that Armstrong was manager of the Tilford Building. This testimony was followed by other testimony showing that Armstrong conveyed this information concerning the elevator doors to Mr. Tilford, one of the defendants. The purpose was to show the actual knowledge of the defective condition of these elevator doors for more than a year prior to the injury. Armstrong, as manager of the Tilford Building, was the agent of the owners at the time he received this notice and conveyed the same to his principals, and the fact that at a later date he ceased to be the agent of the defendants would not affect the materiality of his testimony. There was no error in admitting the testimony.

6. Complaint is made that the court gave an erroneous instruction, in that it stated that if the jury found from the evidence that a head-stop was practicable to be used, and that it would not limit the efficiency of the operation, then the court would say as a matter of law that it was the statutory duty of the defendants to furnish .such an appliance. It is urged that the instruction leaves out the element of safety. In another part of the charge the court informed the jury that:

“If you find at the time of his alleged injuries that he was engaged in carrying on his master’s business, and that at said time was engaged in work involving risk and danger, then you are instructed as a matter of law, that it was incumbent upon the defendants to use every device, care, and precaution, which was practicable to use, for the protection and safety of life and limb, limited only by the necessity for preserving the efficiency of the structure, machine, or other apparatus or device, and without regard to additional cost of suitable material, safety appliances or devices. ’ ’ .

Taking the instruction with the other part of the charge, there could have been no misunderstanding on the part of the jury as to the practicability or necessity of the device mentioned.

7,8. It is maintained on the part of defendants that the defective door was not the proximate cause of the injury, but that the injury was due to the removal of the elevator from the first floor.

In Lane v. Atlantic Works, 111 Mass. 136, we read as follows:

“In actions of this description the defendant is liable for the natural and probable consequences of his negligent act or omission. The injury must be the direct result of the misconduct charged; but it will not be considered too remote if, according to the usual experience of mankind, the result ought to have been apprehended.

“The act of a third person, intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen. The original negligence still remains a culpable and direct cause of the injury. The test is to be found in the probable injurious consequences which were to be anticipated, not in the number of subsequent events and agencies which might arise.”

21 Am. & Eng. Ency. of Law (2 ed.), 491, paragraph b, reads:

“An act or omission may yet be negligent and of a nature to charge a defendant with liability, although no injuries would have been sustained, hut for some intervening cause, if the occurrence of the latter might have been anticipated.”

See 1 Shearman & Redfield on Law of Negligence (6 ed.), Section 34; also, Colorado Mortgage Co. v. Rees, 21 Colo. 435 (42 Pac. 42).

The question whether the accident was the direct result of the neglect of the defendants to repair the elevator door was properly submitted to the jury. It was for that tribunal to determine from the evidence in this case whether the injury was the reasonably probable consequence which was to be anticipated on account of the negligence of the defendants. If an independent cause intervene between the negligence of the defendants and the injury, and such intervening cause and its consequences are sucll as, in the natural course of events, should have been anticipated or foreseen, then the defendants are liable. It was for the jury to say, from the facts and circumstances of the case, whether the defendants could have anticipated or foreseen that persons would naturally tamper with the elevator, if the door were left in a condition to he easily opened, and thereby arrange a dangerous trap for the operator: 1 Thompson’s Com. on Law of Negligence, § 62; Watson, Damages for Personal Injuries, § 58; Colorado Co. v. Giacomini, 55 Colo. 540 (136 Pac. 1039, L. R. A. 1915B, 364).

The case was fairly tried and passed upon by the jury. There was competent evidence to support the verdict. Finding no error in the record, the judgment of the Circuit Court is affirmed. Affirmed.

Johns, Brown and Harris, JJ., concur.