Bowers v. J. D. Halstead Lumber Co.

• Decision Date: 22 May 1925
• Docket Number: Civil 2286
• Citation: 236 P. 124,28 Ariz. 122
• Parties: THEODORE BOWERS, Appellant, v. J. D. HALSTEAD LUMBER COMPANY, a Corporation, Appellee
• Court: Arizona Supreme Court

236 P. 124

28 Ariz. 122

THEODORE BOWERS, Appellant, v. J. D. HALSTEAD LUMBER COMPANY, a Corporation, Appellee

Civil No. 2286

Supreme Court of Arizona

May 22, 1925

APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley Windes, Judge. Affirmed.

Mr. V G. Hash, for Appellant.

Mr Weldon J. Bailey and Mr. Harold Baxter, for Appellee.

OPINION

LOCKWOOD, J.

This is an action by Theodore Bowers, hereinafter called plaintiff, against J. D. Halstead Lumber Company, a Corporation, hereinafter called defendant, for personal injuries alleged to have been sustained by plaintiff as a result of the negligence of defendant.

Plaintiff filed a complaint, which was demurred to by defendant. The demurrer was sustained, and leave granted to amend. An amended complaint was filed, and a general demurrer was interposed and again sustained. Plaintiff for a second time amended his complaint, to which a demurrer was again interposed, and the court sustained it, without leave to amend, ordering the case dismissed. From this order plaintiff appeals.

It is not contended by plaintiff that he could have added anything material to his second amended complaint, had leave to amend been granted. But he does claim that, as it stood, it stated a cause of action. This is the only point involved in the appeal.

The action being for alleged negligence, and not under the Employers' Liability Law or Workmen's Compensation Act (Civ. Code 1913, pars. 3153-3162), it was necessary that plaintiff, in order to maintain his suit, must set up some actionable negligence on the part of the defendant, in his complaint. Now "negligence" is well defined as:

"The failure to do what a reasonable and prudent person would ordinarily have done, under the circumstances of the situation, or the doing what such a person, under the existing circumstances, would not have done." 3 Words and Phrases, Second Series, p. 557, and cases cited.

Is negligence a question of law for the court, or is it one of fact for the jury? The well-established rule is that, when the facts are undisputed, and only one inference can be drawn from them, it is the duty of the court to decide, as a matter of law, whether there was negligence within the above definition. Where, however, the facts, though undisputed, are such there is room for a difference of opinion between reasonable men as to whether or not negligence is to be inferred, the right to draw the inference is for the jury. 29 Cyc. 629, 630.

On a general demurrer we must assume the facts stated in the complaint are true. We then have, as a sole issue for the court, the question, "Is there room for a difference of opinion among reasonable men as to whether negligence might be inferred from the alleged facts?" The complaint alleges substantially that plaintiff was ruptured by attempting to lift a heavy carton of paint over the door of an automobile. He was an employee of the defendant, and had been instructed to go out and get the carton, lifting it over the door to avoid scratching the auto, and to bring it into the warehouse. The package was a small size, not suggesting its weight to the casual observer, and weighed about 100 pounds. Plaintiff was not told of its weight by defendant, nor did he know of it until he attempted to lift it over the door.

It is claimed by plaintiff that defendant as his employer owed him three duties under the circumstances, each of which was violated by the defendant: First, to inform him of the weight of the package; second, to furnish him with assistance to lift it; third, to refrain from ordering him to lift it in a manner which, under the circumstances, might injure him.

It is a matter of common knowledge that a laborer in the lumber business is habitually required, in the ordinary course of his duties, to lift and carry weights far in excess of the carton of paint in question. It does not appear plaintiff was of immature years, or inexperienced in the work, and the package was not in such a position as to endanger his safety, without his taking affirmative action by attempting to lift it. We do not think, under these circumstances, it was the duty of defendant to warn plaintiff of a fact which he could and should have determined for himself, and which could not have endangered him had he been in the exercise of ordinary care. Omaha Bottling Co v. Theiler, 59 Neb. 257, 80 Am. St. Rep. 673, 80 N.W. 821; Mo. Pac. Ry. Co. v. Watts, 64 Tex. 568; Storrs v. Mich. Starch Co., 126 Mich. 666, 86 N.W. 134; ...