Antler v. Cox

Decision Date12 June 1915
Citation149 P. 731,27 Idaho 517
PartiesJOHN ANTLER, Appellant, v. M. M. COX et al., Respondents
CourtIdaho Supreme Court

PERSONAL INJURIES-DAMAGES-SUFFICIENCY OF EVIDENCE-PROXIMATE CAUSE-NONSUIT.

1. Where it appears from the allegations of the complaint that the plaintiff relies upon the unsafe and unsuitable condition of the appliance or tools that he has to use in his work, in case of personal injury, in order to recover he must prove on the trial that such unsafe and unsuitable instrument was the proximate cause of his injury.

2. Where damages for personal injuries are claimed in an action which may have been occasioned by one of two causes, for one of which the defendants were responsible, and for the other they were not, the plaintiff must fail if his evidence does not show that the injuries were the result of the cause for which the defendants were responsible.

3. A proximate cause is that cause from which the effect might be expected to follow without the concurrence of any unusual circumstances.

4. Held, that the court did not err in granting a nonsuit.

APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. John M. Flynn, Judge.

Action to recover damages for personal injuries. Nonsuit granted and judgment of dismissal entered. Affirmed.

Judgment of the trial court affirmed, with costs in favor of the respondents.

G. M Ferris, E. J. Cannon and O. J. Bandelin, for Appellant.

Whether or not the jumping of the horse was the proximate cause, and whether or not appellant might have been injured had the respondents furnished proper appliances, were matters of fact to be submitted to the jury. (Goe v. Northern P. R Co., 30 Wash. 654, 71 P. 182; Gray v. Washington W P. Co., 27 Wash. 713, 68 P. 360; Evansville Hoop & Stave Co. v. Bailey, 43 Ind.App. 153, 84 N.E. 549, 552.)

Appellant presented facts which entitle him to go to the jury, because it was the jumping of the horse which gave the respondents' negligence an opportunity to work the appellant harm. (McDonald v. Toledo etc. Ry. Co., 74 F. 104, 20 C. C. A. 322; Walrod v. Webster Co., 110 Iowa 349, 81 N.W. 598, 47 L. R. A. 480; McKean v. Chappell, 56 Wash. 690, 106 P. 184; Wible v. Burlington etc. Ry. Co., 109 Iowa 557, 80 N.W. 679; Olson v. Gill Home Inv. Co., 58 Wash. 151, 108 P. 140, 27 L. R. A., N. S., 884; Wellington v. Pelletier, 173 F. 908, 97 C. C. A. 458, 26 L. R. A., N. S., 719; Strange v. Bodcaw L. Co., 79 Ark. 490, 116 Am. St. 92, 96 S.W. 152; Bales v. McConnell, 27 Okla. 407, 112 P. 978, 40 L. R. A., N. S., 940; 2 Labatt, Master & Servant, par. 813; Grimes v. Louisville etc. Ry., 3 Ind.App. 573, 30 N.E. 200; Baldridge etc. Bridge Co. v. Cartrett, 75 Tex. 628, 13 S.W. 8; Kennedy v. Mayor etc. of New York, 73 N.Y. 365, 29 Am. Rep. 169; Sturgis v. Kountz, 165 Pa. St. 358, 30 A. 976, 27 L. R. A. 390.)

In order to hold the respondents liable in this case, it was only necessary to show that the appliance was of such a character that there was danger of some accident occurring by reason of its continued use. The following authorities support this contention: Memphis Consol. Gas etc. Co. v. Creighton, 183 F. 552, 106 C. C. A. 98; Doyle v. Chicago etc. Ry. Co., 77 Iowa 607, 42 N.W. 555, 4 L. R. A. 420; Texas etc. Ry. v. Carlin, 111 F. 777, 49 C. C. A. 605, 189 U.S. 354, 23 S.Ct. 585, 47 L.Ed. 849.

The appliance which was furnished in the case at bar was not of such a character as could bring it within the "simple tool rule." Appliances much more simple in character have been decided by many courts not to be within the simple tool rule. (Nicholds v. Crystal Plate Glass Co. (Mo.), 27 S.W. 516; Pennsylvania Ry. v. Forstall, 159 F. 893, 87 C. C. A. 73; Finnerty v. Burnham, 205 Pa. St. 305, 54 A. 996; Harris v. Kansas City etc. Ry., 146 Mo. 524, 124 S.W. 576; Tibbs v. Deemer Mfg. Co., 182 F. 48, 104 C. C. A. 488; Mulligan v. Colorado Fuel etc. Co., 20 Colo. App. 198, 77 P. 977; Neubauer v. Northern P. R. Co., 60 Minn. 130, 61 N.W. 912; Twombly v. Consolidated Electric Light Co., 98 Me. 353, 57 A. 85, 64 L. R. A. 551; Williams v. Garbutt Lumber Co., 132 Ga. 221, 64 S.E. 65; Parker v. W. C. Wood Lumber Co., 98 Miss. 750, 54 So. 252, 40 L. R. A., N. S., 832.)

That rule has no application where the master has assured the servant that the appliance was safe. (Burkard v. Leschen etc. Rope Co., 217 Mo. 466, 117 S.W. 35, 40; Christiansen v. McLellan, 74 Wash. 318, 321, 133 P. 434; Anustasakas v. International Contract Co., 57 Wash. 453, 107 P. 342; Hilgar v. Walla Walla, 50 Wash. 470, 97 P. 498, 19 L. R. A., N. S., 367.)

Black & Wernette and Post, Avery & Higgins, for Respondents.

A verdict must be based on facts, not on conjecture. The court has no right to permit the jury to guess or speculate as to the cause of an accident in an action for personal injuries. (Whitehouse v. Bryant Lumber etc. Co., 50 Wash. 563, 97 P. 751; Olmstead v. Hastings Shingle Mfg. Co., 48 Wash. 657, 94 P. 474; Knapp v. Northern Pacific R. Co., 56 Wash. 662, 106 P. 190; Peterson v. Union Iron Works, 48 Wash. 505, 93 P. 1077; Weckter v. Great Northern R. Co., 54 Wash. 203, 102 P. 1053; Lewinn v. Murphy, 63 Wash. 356, Ann. Cas. 1912D, 433, 115 P. 740; Pearson v. Northern P. R. Co., 72 Wash. 8, 129 P. 573; Searles v. Manhattan Ry. Co., 101 N.Y. 661, 5 N.E. 66; Patton v. Texas & P. R. Co., 179 U.S. 658, 21 S.Ct. 275, 45 L.Ed. 361; Taylor v. City of Yonkers, 105 N.Y. 202, 59 Am. Rep. 492, 11 N.E. 642; Grant v. Pennsylvania & N.Y. Canal & R. Co., 133 N.Y. 657, 31 N.E. 220.)

"Proximate cause is such cause as would probably lead to injury and which has been shown to have led to it. There must be nothing to break the causal connection between the alleged negligence and the injuries." (Brown v. Oregon-Washington R. & N. Co., 63 Ore. 396, 403, 128 P. 38, 40; Washington v. Baltimore etc. R. Co., 17 W.Va. 190; Claypool v. Wigmore, 34 Ind.App. 35, 40, 71 N.E. 510; Stone v. Boston & A. R. Co., 171 Mass. 536, 51 N.E. 1, 41 L. R. A. 794; Behling v. Southwest Pennsylvania Pipe-lines, 160 Pa. St. 359, 40 Am. St. 724, 28 A. 777; Cole v. German Savings & L. Society, 124 F. 113, 115, 59 C. C. A. 593, 63 L. R. A. 416; Braun v. Craven, 175 Ill. 401, 405, 51 N.E. 657, 659, 42 L. R. A. 199; Cleveland C. C. & St. L. Ry. Co. v. Lindsay, 109 Ill.App. 533; Milwaukee etc. Ry. Co. v. Kellogg, 94 U.S. 469, 475, 24 L.Ed. 256; 1 Thompson's Commentaries on Negligence, 57; 29 Cyc. 528; Hartvig v. N. P. Lumber Co., 19 Ore. 522, 525, 25 P. 358.)

There is no evidence of a hidden defect, or a condition not known by plaintiff. (Goure v. Storey, 17 Idaho 352, 361, 105 P. 794.)

Where the method is understood, it is immaterial whether it is the usual or ordinary method. (Smith v. Potlatch Lumber Co., 22 Idaho 782, 128 P. 546; Drake v. Union P. Ry. Co., 2 Idaho (453) 487, 21 P. 560; Day v. Cleveland etc. R. Co., 137 Ind. 206, 36 N.E. 854.)

The rule which governs the use of simple tools furnished by the master needs no extended discussion. (Lapier v. Beaubien Ice & Coal Co., 162 Mich. 533, 127 N.W. 692, 35 L. R. A., N. S., 199; Stirling Coal & Coke Co. v. Fork, 141 Ky. 40, 131 S.W. 1030; Hogg v. Standard Lumber Co., 52 Wash. 8, 100 P. 151; Cahill v. Hilton, 106 N.Y. 512, 13 N.E. 339; Meador v. Lake Shore & M. S. Ry. Co., 138 Ind. 290, 46 Am. St. 384, 37 N.E. 721; Wheaton v. Wagner Lake Ice etc. Co., 151 Mich. 100, 114 N.W. 853; House v. Southern R. Co., 152 N.C. 397, 67 S.E. 981.)

SULLIVAN, C. J. Budge and Morgan, JJ., concur.

OPINION

SULLIVAN, C. J.

This action was brought to recover damages for personal injuries received while in the employ of the respondents, which resulted in the loss of a leg.

It is alleged that the appliances furnished to appellant were unsafe and dangerous. On the trial appellant introduced his evidence and rested and counsel thereupon made a motion for a nonsuit, which the court sustained and entered a judgment dismissing the action. Thereafter a motion for a new trial was denied. The appeal is from the judgment and the order denying the new trial.

Appellant assigns as error the granting of respondents' motion for a nonsuit, denial of appellant's motion for a new trial, and that the court erred in entering judgment in favor of the respondents.

The following facts appear from the record: Appellant is 38 years of age, of German descent and does not speak the English language very well; has been in this country about eight years and has been employed most of the time as a carpenter, and had not had much experience in working in the woods or in handling horses until employed by respondents, where he had worked only a short time before the accident occurred.

The respondents were engaged in logging and maintaining and operating logging camps for the purpose of carrying on their business. Among other things, they were engaged in trailing logs down a chute. Two days prior to the accident, respondents requested appellant to take a horse and trail logs. The appellant objected to doing that kind of work and informed respondents that he knew nothing whatever about handling horses or of that kind of work, but consented to do the work.

The work of trailing logs is performed by the use of a horse and chain some 20 to 24 feet in length, attached to a singletree by means of a hook. On the end of this chain is attached a trail-hook. A number of logs are placed in the chute, one after another, and the trail-hook is fastened to the upper end of the upper log, and the horse is then driven along the chute, dragging or pushing the logs down the chute to the desired point. The chain in this instance was composed of about ten feet of link chain and about ten feet of wire cable and the hook was not fastened to the chain by a swivel. After the logs had been delivered to the...

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