Bottig v. Polsky

• Decision Date: 04 October 1921
• Citation: 101 Or. 530,201 P. 188
• Parties: BOTTIG v. POLSKY.
• Court: Oregon Supreme Court

201 P. 188

101 Or. 530

BOTTIG v. POLSKY.

Supreme Court of Oregon

October 4, 1921

In banc.

Appeal from Circuit Court, Multnomah County; J. P. Kavanaugh, Judge.

Action by Joe Bottig against Fred Polsky. From an order setting aside verdict and judgment for plaintiff, and granting a new trial, plaintiff appeals. Affirmed.

Joe Bottig, an employee of Fred Polsky, was injured while loading empty barrels in a box car. Bottig sued Polsky and recovered a verdict and judgment for $1,000. On motion of the defendant the trial court set aside the verdict and judgment, and granted a new trial. The plaintiff appealed.

Fred Polsky was a dealer in new and secondhand barrels and kegs and did business under the assumed business name of Panama Cooperage Company. His place of business was on Front street in Portland. From time to time Polsky shipped barrels by railway. On March 5, 1919, a railway box car was placed at the corner of Salmon and Front streets in order that Polsky might load it with barrels. The car could not be placed for loading prior to 8 p. m., because to have placed the car there before that hour would have interfered with trains; and hence it was necessary that the loading be done after 8 p m., and in the nighttime. The work of loading was begun soon after 8 p. m., and completed about midnight. Bottig was injured about 11:30 p. m.

Lanterns were used to light the inside of the car. According to evidence offered in behalf of defendant, three good lanterns were used; but according to the testimony of plaintiff "it was awful dark," for he explained "sometimes we had one or two lamps in there, coal oil lamps, and the glass was black and dirty like a coal sack." The plaintiff testified that "they was always in a hurry;" and in explanation of this testimony it is claimed that the evidence supports the statement that the plaintiff and the other three men who were helping to load the car had other employment in the daytime, and on that account were anxious to expedite the work of loading; and furthermore, it is said that it was necessary to complete the work before a certain time, so that there would be no interference with traffic on the railroad. Most, if not all of the barrels had once contained oil, and consequently many of them were greasy on the outside. Although all the barrels were not the same in height and circumference, some being longer than others, and varying in circumference, most, if not all, of them were 50-gallon barrels. The car when loaded contained about 300 barrels.

The barrels were hauled on a truck from the defendant's place of business to the car, and there loaded through a door located at the middle of the car and in the side of it. The car was loaded in the manner generally followed when loading barrels into a car. One end of the car was filled "up to" the door, and then the other end was loaded "up to the door"; and finally the middle was filled. The barrels were placed in tiers. Each tier, when completed, contained four rows. The barrels in the first three rows were placed upright or end on end; but the proximity of the roof of the car made it necessary to lay the barrels in the fourth row on their sides.

At the time when plaintiff was hurt both ends of the car had been filled, and the plaintiff and those working with him were engaged in filling the middle of the car. A tier of four rows had been piled "up to the door"; next to this tier was one containing two rows; and next to the latter was one or more tiers, each of which at that time contained but one row. E. J. Bundy, the truck driver, delivered the barrels from the truck into the car. John P. Schuster, who was in charge of the work, was inside the car. Nicholas Skow worked inside of the car part of the time, and during the remainder of the time he helped Bundy.

Bottig was piling barrels on the tier which contained two rows. According to the testimony of Bottig, both Schuster and Skow were inside of the car receiving barrels from Bundy and delivering them to Bottig; but there is also evidence to the effect that at the time of the injury Skow was on the truck. At any rate, Bottig had received a barrel from Skow or Schuster and had placed it on the tier containing two rows, and, with one hand resting on the barrel which be "put on last," was waiting to receive the next barrel to be delivered to him, when a barrel fell from the fourth row of the adjoining tier, which had been piled "up to the door," striking his hand and severely injuring it.

The plaintiff claims that the falling of the barrel was caused by the fault of the defendant. Polsky says that the plaintiff himself negligently caused the barrel to fall. The complaint consists of four paragraphs and the prayer. The first paragraph merely tells who the defendant is, what his business is, and where he does business. The second paragraph informs us that the plaintiff was employed by the defendant and directed to assist in loading empty barrels in a box car, and that while so engaged the plaintiff was injured by a barrel which fell upon his hand. The third paragraph is as follows:

"That said injury to plaintiff was caused by the carelessness, recklessness and/or negligence of defendant in requiring plaintiff to place said barrels in said box car, one barrel upon another, and to stack said barrels up as high as the roof of said car would permit, and in not using every device, care, and precaution which it is practicable to use for the safety and protection of life and limb of defendant's employees, as required by law, in that defendant did not have sufficient employees engaged in said work, and directed that said work be done in such manner that it was possible for barrels to roll down from the top of the pile and to fall upon the persons engaged in said work, and directed said work to be done in such manner as to be dangerous to those employed therein; that defendant well knew of the danger involved in loading said barrels in said car at that time in the manner in which he required said work to be done, and failed to take proper and necessary precautions to prevent such accidents."

The fourth paragraph declares that plaintiff expended $20 for medical services, and that he will be compelled to spend more money for a surgical operation; that he was unable to work for several weeks, and on that account lost wages; and that he has been permanently damaged in a specified sum.

The defendant filed a motion to require the plaintiff to set out in paragraph 3 of his complaint--

"wherein the defendant did not use 'every device, care, and precaution which it is practicable to use for the safety and protection of defendant's employees as required by law,' and further set out in said paragraph 3 wherein the defendant 'failed to take proper and necessary precautions to prevent such accidents."'

The court denied the motion, and also overruled a demurrer which the defendant subsequently filed.

After the demurrer was overruled, the defendant filed an answer denying paragraphs 3 and 4 and a portion of paragraph 2 of the complaint. For a first further and separate defense the defendant alleged that the plaintiff was guilty of contributory negligence; and for a second further and separate defense the defendant pleaded assumption of risk. The plaintiff replied by denying each of the two separate defenses pleaded by the defendant.

The trial judge instructed the jury concerning the Employers' Liability Act (Or. L. §§ 6785-6791), and also concerning the rules of common-law negligence. Under the charge given by the court the jurors were permitted to return a verdict for the plaintiff if they found sufficient facts to bring the transaction within the Employers' Liability Act, or, if the Employers' Liability Act did not apply, to return a verdict on the theory of common-law negligence in the event sufficient facts existed to create a common-law liability.

The court in its charge pointed out the specifications of negligence appearing in the complaint and instructed the jury:

"So you have three charges of negligence, and these only: That there were not sufficient employees there; second, that he directed the work to be done in a manner that it was possible for the barrels to roll down from the top of the pile and fall upon the employees engaged in said work; and, third, that he directed the work to be done in such manner as to be dangerous to the employees."

The court further instructed the jury:

"If you find, I say, by a preponderance of the evidence that he was guilty of negligence in either of those particulars (the three particulars specified), and further find by a preponderance of the evidence that such negligence, if any, was the proximate cause of the injury to this plaintiff, and if you further find that these provisions, if corrected--that is to say, if he employed more men or if he piled the barrels differently or in some other way--if that would not have interfered with the efficiency of the work, then your finding upon that charge of negligence should be in favor of the plaintiff."

After a verdict was returned in favor of the plaintiff, the defendent moved for a new trial, and assigned as grounds: (1) Refusal of the court to grant a judgment of nonsuit; (2) refusal to direct a verdict for the defendant; (3) refusal to instruct the jury that the Employer's Liability Act did not apply; (4) a refusal to give four requested instructions.

The trial court allowed the motion for a new trial, and signed and filed a writing which reads thus:

"A careful review of the allegations of the complaint convinces me that these allegations are insufficient to justify the court to submit the controversy to the jury under the Employers' Liability Act; that the instructions relating to the Employers'...