Busch v. Robinson

• Decision Date: 12 June 1905
• Citation: 81 P. 237,46 Or. 539
• Parties: BUSCH v. ROBINSON. [*]
• Court: Oregon Supreme Court

81 P. 237

46 Or. 539

BUSCH v. ROBINSON. ^[*]

Supreme Court of Oregon

June 12, 1905

Appeal from Circuit Court, Umatilla County; W.R. Ellis, Judge.

Action by Margaret Busch against John F. Robinson. From a judgment for plaintiff, defendant appeals. Affirmed.

The plaintiff, an employé of the defendant, while at work in a laundry, of which the latter was proprietor, feeding a mangle, slipped, and, falling forward, her right hand was caught between the rollers and seriously injured. She attributes the cause of the injury to the negligence of the defendant, and charges in her complaint that he kept and maintained a platform in front of the mangle, upon which the employés feeding the same were obliged to stand; that he carelessly and negligently suffered said platform to be and become in a broken and defective condition, and negligently suffered the same to be and become slippery and worn, and to have a hole therein, and did then and there carelessly fail to provide a safe place for plaintiff to perform her work, of all of which defendant then and there had knowledge; that being in the performance of her duties as an employé of the defendant, and while standing on said platform and feeding said machine, plaintiff's foot slipped into a cavity in said platform, caused by said broken and defective condition whereby she lost her balance and fell forward, and her hand was caught in the rollers and injured as above indicated. She gave testimony tending to show that she had supervisory control over the girls working about the mangle, there being four at the time, including herself (two in front, feeding and two upon the opposite side, folding the fabrics as they came away); that her especial duty otherwise was to assist in folding, but that whenever occasion required, in furtherance of her duty in supervising the work, she assisted in feeding as well; that on the evening of the accident the girls were working overtime, and plaintiff was in a hurry to get through, as she had been directed by the defendant, who had general superintendence about the laundry, to complete the work in hand before closing down; that, observing that one of the girls at the machine was not working as expeditiously as she should, plaintiff changed places with her, and directed her to fold while she fed the machine in her stead; that presently she missed the girl from her work, and, with a view to ascertaining her whereabouts, raised on her tiptoes, at the same time looking over the machine, when she was precipitated forward, and her hand was drawn between the rollers and crushed and burned. Plaintiff testified that her "foot slipped in the knothole and she fell into the machine." The plaintiff and a Mrs. Lewis, who was her principal witness, aside from herself, described the defect finally as being a knot in the board forming the platform which stood about four inches from the floor, from which the board was split on each side for the distance of about a foot, and that the broken segment sprang down under the tread, permitting the foot to slip into the space, which was about three inches in width. They each gave out as first impression that the defect was a split from a knothole, but, when their attention was called explicitly to it, they testified that it was a split from a knot yet remaining in the board. They further testified that from long use the board had worn smooth and become slippery. Plaintiff further testified that her foot went into the opening to her instep; that she did not know of the defect; that her attention had not been called to it, although she knew of the knot; that she could see the platform, but did not remember the break being there; that she supposed she could have seen it if her attention had been called to it, but it never had; that she was seldom on that side of the machine; that she had no recollection of seeing the break before she was hurt; and that the place was shaded. Mrs. Lewis testified that she was aware of the defect, and that it had existed for some time, but that her attention was not called especially to it until plaintiff was hurt. The machine was four feet three or six inches in height, and eight feet in length. At the close of the plaintiff's case there was a motion for nonsuit, which being denied, the trial was completed, resulting in a judgment for plaintiff, from which the defendant appeals.

John McCourt, for appellant.

Stephen A. Lowell, for respondent.

WOLVERTON C.J. (after stating the facts).

The first assignment of error relates to the overruling of a demurrer to the complaint, and it is now urged that it is insufficient after verdict, in that it does not state that plaintiff was without knowledge of the defective and broken board while using the platform, or, stating the contention more precisely, that having shown that the defendant suffered the platform whereon she was to stand in doing her work to become and remain in a broken condition, without having stated more, it must be assumed that the defect was open and obvious, and, of course, that the plaintiff saw and observed it, and therefore had knowledge of it, and that, in proceeding to work on the platform with such knowledge, she voluntarily assumed the risk, and hence that the defendant is not liable upon the face of the complaint. An assumption of risk is characterized as a sort of estoppel against claiming damages for injuries received, which arises from contract, by engaging or consenting to work about a defective machine or with a defective appliance. Beach, Contributory Neg. § 16. It is urged that it is inferable from the showing that the platform was broken or defective and had a hole in it that plaintiff had knowledge of the condition, but such a result does not necessarily follow. The manner of the break or defect is not further or specifically described. We may assume that plaintiff knew of the knothole or the knot, as some of the witnesses indicate it was, and yet she may not have known or realized the real extent or dangerous character of the defect. If the complaint had described the imperfection as the testimony tends to show it to have existed, it was rather of a latent character than one open and obvious to the sense of sight, and only made itself fully manifest under the tread of the foot. This serves to demonstrate that the inference of knowledge cannot be certainly deduced from the specifications of the defect, and after verdict we think the complaint is sufficient.

The next question in the order of trial arises upon the admission over objection of certain testimony of Dr. C.J. Smith. After describing the extent of the injury to the...