Bressan v. Herrick

• Decision Date: 03 March 1922
• Parties: JOE BRESSAN, Special Administrator of the Estate of STEVE BRESSAN, Deceased, Respondent, v. FRED HERRICK, Doing Business as the EXPORT LUMBER CO., Appellant
• Court: Idaho Supreme Court

205 P. 555

35 Idaho 217

JOE BRESSAN, Special Administrator of the Estate of STEVE BRESSAN, Deceased, Respondent, v. FRED HERRICK, Doing Business as the EXPORT LUMBER CO., Appellant

Supreme Court of Idaho

March 3, 1922

ACTION FOR PERSONAL INJURIES-JURORS-CONNECTION WITH CASUALTY INSURANCE COMPANY-VOIR DIRE EXAMINATION-MASTER AND SERVANT-ASSUMPTION OF RISK-ORDINARY RISK-EXTRAORDINARY RISK-WHEN QUESTION FOR COURT AND WHEN FOR JURY-CONTRIBUTORY NEGLIGENCE-WHEN QUESTION FOR COURT AND WHEN FOR JURY-NONSUIT-DIRECTED VERDICT-OFFER OF DEPOSITION AS A WHOLE-REJECTION AS A WHOLE-PART ADMISSIBLE-PART INADMISSIBLE.

1. Rule of Wilson v. St. Joe Boom Co., 34 Idaho 253, 200 P. 884, as to examination of jurors on voir dire examination affirmed and applied.

2. The question of assumption of risk is generally one of fact for the jury, and becomes one of law only when the evidence is reasonably susceptible of no other interpretation than that the injured party assumed the risk, which, in the case of a risk arising out of the employer's negligence, would mean that the servant both knew the facts and appreciated the danger.

3. Rule of Testo v. Oregon-W. R. & N. Co., 34 Idaho 765, 203 P. 1065 as to when contributory negligence is and is not a question of fact for the jury, affirmed and applied.

4. When a deposition and attached exhibit are offered as a whole, and objected to as a whole, a ruling sustaining that objection is not error if the deposition and exhibit contained matter that was inadmissible.

5. To predicate error in such case the party making the offer must offer that part which is admissible, excluding the part which is inadmissible.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. Robert N. Dunn, Judge.

Action for personal injuries through negligence of defendant. From a judgment for plaintiff and from an order denying motion for a new trial, defendant appeals. Affirmed.

Judgment affirmed, with costs to respondent.

Ralph S. Nelson and Robt. H. Elder, for Appellant.

Plaintiff's counsel was guilty of misconduct in bringing before the jury the question of insurance company. (Steve v. Bonners Ferry Lumber Co., 13 Idaho 398, 92 P. 363; Cameron v. Pacific Lime & Gypsum Co., 73 Ore. 510, Ann. Cas 1916E, 769, 144 P. 446; Tuohy v. Columbia Steel Co., 61 Ore. 527, 122 P. 36; Putnam v. Pacific Monthly Co. (Or.) Ann. Cas. 1915C, 256, 130 P. 986.)

The plaintiff assumed the risk of the injuries received. ( Fontaine v. Johnson Lumber Co., 76 N.H. 163, 80 A. 338; De Souza v. Stafford Mills, 155 Mass. 476, 30 N.E. 81; Ely v. San Antonio R. Co., 15 Tex. Civ. 511, 40 S.W. 174; Connelly v. Hamilton Woolen Co., 163 Mass. 156, 39 N.E. 787; Stuart v. West End Street Co., 163 Mass. 391, 40 N.E. 180; Labatt's Master & Servant, sec. 1191; Appeal v. Buffalo etc. Ry. Co., 111 N.Y. 553, 19 N.E. 93; Scharenbroich v. St. Cloud Fibre-Ware Co., 59 Minn. 116, 60 N.W. 1093.)

The plaintiff was guilty of contributory negligence. (Atlas Engine Works v. Randall, 100 Ind. 293, 50 Am. Rep. 798; Carlson v. Sioux Falls Water Co., 5 S.D. 402, 59 N.W. 217; Olson v. McMullan, 34 Minn. 94, 24 N.W. 318; Bailey's Master and Servant, p. 165; Osborne v. Lehigh Valley Coal Co., 97 Wis. 27, 71 N.W. 815.)

E. R. Whitla, for Respondent.

There was no misconduct of plaintiff's counsel or prejudicing of jurors by questions indicating insurance company was defending the case. (Swift & Co. v. Platte, 68 Kan. 1, 74 P. 635; Spoonick v. Backus-Brooks Co., 89 Minn. 354, 94 N.W. 1079; Grant v. National Ry. Springs Co., 100 A.D. 234, 91 N.Y.S. 805; Cripple Creek Min. Co. v. Brabant, 37 Colo. 423, 87 P. 794; M. O'Connor Co. v. Gillaspy, 170 Ind. 428, 83 N.E. 738; Saller v. Friedman Bros. Shoe Co., 130 Mo.App. 712, 109 S.W. 794; Girard v. Grosvenordale Co., 82 Conn. 271, 73 A. 747; Kenny v. Marquette C. Mfg. Co., 243 Ill. 396, 90 N.E. 724; Odell v. Genessee Const. Co., 129 N.Y.S. 122.)

The action of the court in refusing to admit the statement made to the attending physician was proper. (Brayman v. Russell & Pugh Lumber Co., 31 Idaho 140, 169 P. 932; Jones v. City of Caldwell, 23 Idaho 467, 130 P. 995; McRae v. Erickson, 1 Cal.App. 326, 82 P. 209.)

Assumption of risk is always a question for the jury. (Rase v. Minneapolis, St. P. & S. S. M. Ry. Co., 107 Minn. 260, 120 N.W. 360, 21 L. R. A., N. S., 138; Fitzgerald v. Conn. River Paper Co., 155 Mass. 155, 31 Am. St. 537, 29 N.E. 464; Chotaw O. & G. R. Co. v. McDade, 191 U.S. 63, 24 S.Ct. 24, 48 L.Ed. 96; Jones v. E. Tennessee, V. & G. R. Co., 128 U.S. 443, 9 S.Ct. 118, 32 L.Ed. 478; Cox v. Capital Box Co., 47 Wash. 148, 91 P. 555; Busch v. Robinson, 46 Ore. 539, 81 P. 237; Swanstrom v. Frost, 26 Idaho 79, 140 P. 1105; Maw v. Coast Lumber Co., 19 Idaho 396, 114 P. 9.)

Contributory negligence is always a question for the jury. (Chopin v. Combined Locks Paper Co., 134 Wis. 35, 114 N.W. 95; Rase v. Minneapolis, St. P. & S. S. M. Ry. Co., supra; Donovan v. Boise City, 31 Idaho 324, 171 P. 670; Miller v. Kimberly & Clark Co., 137 Wis. 138, 118 N.W. 536; Tucker v. Palmberg, 28 Idaho 693, 155 P. 981.)

MCCARTHY, J. Rice, C. J., and Lee, J., concur, Budge, J., concurs in the conclusions. Dunn, J. , did not sit at the hearing and took no part in this opinion.

OPINION

MCCARTHY, J.

This is an action for negligence. The original respondent, Steve Bressan, died subsequent to the judgment and will be referred to in this opinion as the deceased. His administrator, the present respondent, was substituted.

About July 7, 1916, Steve Bressan was employed by the appellant to work on the ground floor of his sawmill as a clean-up man. The work consisted of sweeping up the sawdust and shoveling the bark and debris into the conveyor which carried the same to the burner. On the floor were various pulleys, belts, conveyor chains, and chutes, transmission shafts and other machinery which propelled the saws and machinery on the floor above. Deceased was injured by being caught on the conveyor chain which ran lengthwise of the lower floor and carried to the burner the sawdust and debris coming from the floor above.

Deceased had been engaged in this work about six weeks when the accident happened. The conveyor chain on which he was injured is an endless chain composed of large links about a foot square, which travels at a speed equivalent to a slow walk. It starts at the head or north end of the ground floor at an elevation of a foot or so above the floor and runs through a through to the tail end of the mill on a gradual upward slope, at which point it passes under an idler stationed on the floor. The idler is a large iron wheel about twenty-four inches in diameter and about two feet wide. From the sprocket wheel near the ceiling down to the idler the conveyor chain was not covered, but left open, to allow the slack in the chain to work and also to permit repair when needed.

While at work, back of the idler and under the chute, the deceased got against the chain and one foot was caught in the chain, which pulled his leg under the idler and injured him severely.

The deceased alleged and contended this appellant did not provide him a reasonably safe place in which to work, the alleged negligence being the failure to guard or protect the conveyor chain at the point in question. He testified that blocks had in the past jumped out of the chute, that he heard a loud noise caused by the falling of blocks into the chute, and, fearing they might fall out and on him, he stepped back, and in so doing was caught by the uncovered chain.

The answer denied any negligence on appellant's part. Appellant contends that the failure to cover the chain was not negligence. The evidence is conflicting as to whether or not reasonable care requires that such a chain be covered at the point in question. Appellant also alleged that the danger, if any, entailed by the uncovered chain, was an ordinary risk of the employment, and assumed by deceased; also that he was clearly guilty of contributory negligence. Appellant contends that the evidence clearly shows that the deceased was trying to step over the chain, instead of adopting the safe method of stepping around it.

Appellant made motions for nonsuit and for a directed verdict in his favor. From a judgment, based on the jury's verdict for $ 5,000 in favor of deceased, and an order denying a motion for a new trial, this appeal is taken.

The first specification of error which we will mention is that the court erred on voir dire in permitting respondent's counsel to ask certain jurors as to whether they had had any connection or relation with surety or casualty companies.

"In a suit for personal injuries, evidence that the defendant carries casualty insurance is incompetent and immaterial; but counsel for plaintiff may be permitted on the voir dire examination to ascertain whether the jurors have any interest in the result of the litigation, although this may show such juror's connection with a casualty company, so long as the privilege is not abused or used as a subterfuge to communicate improper matter to the jurors." (Wilson v. St. Joe Boom Co., 34 Idaho 253, 200 P. 884.)

Under the above ruling, no error appears in this record.

We will next consider the specification of error that the court should have sustained the motion for a nonsuit, or at least the motion for a directed verdict for appellant. Appellant contends both should have been sustained, because, first, the evidence shows as matter of law that deceased assumed the risk of any danger entailed by the conveyor chain, and second, it shows as matter of law that deceased was guilty of contributory negligence.

"A servant or employee, in accepting a service or employment assumes the risk incident to such employment...