126 P. 24 | Or. | 1912
delivered the opinion of the court.
In the defendant’s brief it is first contended that the plaintiff assumed the risk and that for that reason, among others, a motion for a nonsuit, interposed at the close of plaintiff’s case, should have been allowed.
Another witness for plaintiff, Fred H'armening by name, testified in substance that, when lumber was piled in the way described and they took down one tier at a time without disturbing the adjoining tier, the usual and customary way was to watch the standing tier and test it by shaking it and see whether it was solid or not
.5. We have yet to consider the two remaining assignments of error mentioned in the brief. One of them is to the effect that the court was wrong in allowing witnesses for the plaintiff to testify that the method of removing the lumber from the pile by taking down .one tier entirely before attacking another was the usual and customary method.
“Even though you should find that plaintiff removed the whole of the tier in front of the tier that fell before removing any of the tier that did fall, and you also find*499 that such was the usual and customary method and manner of removing said lumber, then I insruct you that plaintiff was not negligent in so removing the same, taking into consideration, of course, the frozen condition of the pile of lumber, and plaintiff’s condition at the time.”
In section 32, 1 Thompson’s Comm. Negligence, the rule about custom in such cases is thus stated:
“Where there is no absolute standard of diligence fixed by law, evidence of usage or custom may become material in assisting a jury in determining the standard of care which ought to have been adhered to in a given case. * * On the other hand, where there is a statute imposing an absolute liability upon a municipality for failing to make its highways safe for travel, it is held that a general usage or custom as to placing rails or barriers along a highway embankment is of no importance in determining the liability of the municipality for failing to provide such barriers at a dangerous place. The conclusion seems to be that custom or usage cannot of itself make in any cases an absolute standard of negligence or diligence except in cases where persons are held to have contracted to act with reference to a given custom or usage, but that cases may frequently arise where evidence of a custom or usage may be an important element to be considered by a jury in determining whether there has been a failure to exercise ordinary care.”
Labatt, in his Commentaries on the Laws of Master and Servant, § 353, uses this language on this topic:
“The only doctrine which it seems possible to formulate upon the subject is the somewhat vague one that, unless what the servant did was necessarily and inevitably so dangerous that it is impossible to concede that any prudent man would have acted in such a manner, evidence showing that he complied with a custom known to and expressly or impliedly sanctioned by his employer would generally turn the scale in his favor and secure for him the privilege of having the quality of his conduct determined by the jury, although he would otherwise have been declared incapable of recovering.”
“Defendant alleges that the tiers of lumber in question were piled according to the usual practice and custom of mill companies engaged in that business. In this regard I instruct you that if you find from a preponderance of the evidence that the tiers of lumber in question were not piled with reasonable safety and were dangerous and liable to fall upon a person working near 'them or about them in the performance of their duties, and that defendant knew or in the exercise of reasonable care ought to have known this, and you further find under the instructions I have given you that the defendant was negligent, then I instruct you that the fact that the tiers of lumber were piled according to the usual practice or custom of mill companies is no defense, because custom or usage cannot justify negligence. In other words, these are questions of fact.”
This charge correctly illustrates the principle affecting the defendant that, although the custom had been observed in piling the lumber, yet if it was in fact dangerous, and the defendant knew it was dangerous, or might have known it by the exercise of reasonable care, the custom would not excuse the negligence of the defendant in not providing against the peril to the laborers. Correlative principles also affect the plaintiff. He is bound to exercise ordinary care in observing the dangers of the situation, and if he knew, or in the exercise of reasonable care ought to have known, that the same lumber was piled in a dangerous manner and that if moved in the way which he pursued it was liable to fall upon him, then the custom of handling it in that way would not excuse him or exonerate him from the charge of contributory negligence. However, these elements, included in the charge respecting the defendant, are
Again, the ultimate question for the jury to determine is whether or not the plaintiff was negligent in a manner contributing to his injury. In reaching a conclusion on that branch of the case the jury must consider all of the elements to which allusion has just been made. By the instruction challenged, however, the court in effect assumed as a matter of law that if the custom was followed the plaintiff was not negligent. In effect the judge said to the jury as touching the question of contributory negligence:
“All you gentlemen have to determine is whether or not the plaintiff pursued the usual and customary method of removing the lumber, and, if you find that he did, I say to you as a matter of law that he was not negligent.”
In so doing the court invaded the province of the jury and assumed to pass upon a question which the 12 men should have considered for themselves.
Plaintiff has cited Rush v. O. W. P. R. Co., 51 Or. 519 (95 Pac. 193), as fortifying the instruction now under consideration. In the opinion in that case Mr. Justice Moore said:
“It is generally held that a servant who unnecessarily adopts a dangerous method of performing a labor required of him assumes the resulting danger. His choice of a customary method of doing such work, however, is not ordinarily regarded as negligence.”
The case there under consideration was one in which the plaintiff, a brakeman in the employ of the defendant railroad company, sued for damages accruing to him by injuries received while in the pursuit of his employment as brakeman. In moving some cars in the yard of the defendant company they had collided with one another, and while extricating them from the jam the plaintiff had received his injury in undertaking to loosen a coup
“Would you consider it careless, reckless, or negligent to stand upon a wagon loaded with lumber, upon which there is no seat, driving four horses up a street with an incline and making a turn?”
On appeal to this court Mr. Justice McBride, discussing that matter said: “We are inclined to think that
A careful analysis of all the authorities cited from other states by the plaintiff here shows that the courts have in no instance gone farther than to say that such evidence is admissible to enable the jury to consider the whole situation and determine whether or not the charge of negligence of the plaintiff contributing to his injury has been established. One of plaintiff’s citations is Campbell v. Railway Co., 243 Ill. 620 (90 N. E. 1106). There, one of the switching crew undertook to get upon a brake beam to ride to the place of performance of his duty and was in juried. And against the charge of the defendant that the plaintiff was guilty of contributory negligence the latter introduced testimony that such action was customary among switchmen. This was assigned as error, and in the opinion of Mr. Justice Dunn said: “It is not the province of this court to determine whether these facts were proved, or whether, if proved, they establish negligence on the part of appellant or care on the part of the appellee. We have only to consider whether the facts which the evidence tends to prove have any reasonable tendency to show that the appellant was negligent and that the appellee was in juried by such negligence and was himself at the time in the exercise of ordinary care.” In the case at bar the circuit court was right in admitting the testimony
“The general rule of law is that when the danger is obvious and is of such a nature that it can be appreciated and understood by the servant as well as by the master or by any one else, and when the servant has as good an opportunity as the master or any one else of seeing what the danger is and is permitted to do his work in his own way and can avoid the danger by the exercise of reasonable care, the servant cannot recover against the master for injuries received in consequence of the condition of things which constituted the danger. * * This principle is deemed to involve the corollary that, in the absence of one or the other of the differentiating factors to be discussed in the following subtitle, a servant will ordinarily be pronounced negligent as a matter of law whenever it is clear from the evidence that there was a safe and a dangerous method available for the performance of the work at hand, and that he selected the latter method with knowledge actual or constructive of the fact that it was dangerous, the mere fact that the safer method is one which involves considerably more trouble than the more dangerous one is no excuse for adopting the latter.”
In this case there was evidence authorizing the jury to find that the plaintiff had as good an opportunity as the defendant to see and know the condition of the lumber and to appreciate the risk of moving it, and that the details of the work were left to himself and those with whom he worked so that he had choice of the different methods described by his own witnesses. Under similar circumstances as to the same pile of lumber, custom affects alike every one concerned having equal observation and comprehension of the risk, and the question should have been submitted to the jury in the same way in respect to both parties, leaving to the 12 men
For the error in the' instruction complained of, the judgment is reversed, and the cause remanded for further procedure not inconsistent with this opinion.
Reversed.