Caraduc v. Schanen-Blair Co.

• Decision Date: 01 July 1913
• Citation: 66 Or. 310,133 P. 636
• Parties: CARADUC v. SCHANEN-BLAIR CO.
• Court: Oregon Supreme Court

133 P. 636

66 Or. 310

CARADUC v. SCHANEN-BLAIR CO.

Supreme Court of Oregon

July 1, 1913

Department 2.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Action by Eugene Caraduc against the Schanen-Blair Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action for damages for personal injuries sustained by the plaintiff while at work on the Lincoln high school building Portland, Or. The cause was tried before a jury, which rendered a verdict in favor of the plaintiff. From a judgment entered thereon the defendant appeals.

The complaint charged that the injury was caused by the falling of a block of granite which the defendant had placed near the building in such a careless and negligent manner that it was liable to fall, that the block was placed on loose planks in an entrance way to the building, and so carelessly and negligently placed that it fell of its own weight and by reason of the vibrations of the building. The answer put in issue these allegations, and averred that the injury was occasioned by the act of the plaintiff in attempting to move the stone, and as a result of his negligence. The plaintiff was employed by the Roebling Construction Company which had a subcontract with the general contractor to do the concrete work on the Lincoln high school building. The defendant had a subcontract with the general contractor to do the granite and marble work. Other contracts were made with various firms for doing work necessary for the erection of the building. On August 17, 1911, one of the stones required for use in a certain part of the structure was deposited near the spot where it was to be placed, remaining there until the 22d day of August, 1911, the day of the accident. It appears from the evidence that this stone was 13 inches thick, 3 feet high about 4 feet long, and weighed nearly a ton. It was placed upon its edge upon planks resting on, or partly on, the sidewalk, near an entrance to the building. The evidence of the plaintiff tended to show that the stone was left standing in an unstable condition, upon its edge and partially upon a plank with about eight inches of débris, consisting of stones, brick, short pieces of lumber, earth, and rubbish, so that the surface on which it rested was uneven; that it was not braced nor securely fastened. The defendant's evidence tended to show that the stone was placed in a safe and solid position on the date mentioned, and that it was seen in that place from day to day up to the time of the injury. The stone was to be placed at one side of the entrance to the building upon a concrete surface which had been raised to a greater height than required. It therefore became necessary to cut away a portion of the concrete from the place where the stone was to rest, and plaintiff, with two other men, was engaged in such work, and was about three feet from the stone when it fell upon his feet and ankles injuring him.

Ralph W. Wilbur, of Portland (Wilbur, Spencer & Dibble, of Portland, on the brief), for appellant.

Frank S. Senn and W.P. La Roche, both of Portland (Rauch & Senn Schnabel & La Roche, and J.B. Ofner, all of Portland, on the brief), for respondent.

BEAN J. (after stating the facts as above).

There were no contractual relations existing between the plaintiff and the defendant. The plaintiff was rightfully upon the premises. The defendant company owed a duty to the plaintiff to abstain from creating a nuisance or a condition in the building that would be likely to injure him. It was the duty of the defendant to use reasonable care and precaution in placing the stone near the building, and in maintaining it there.

At the close of plaintiff's evidence, counsel for defendant moved the court for a nonsuit, which was denied, after which defendant's counsel introduced evidence and requested the court to instruct the jury to find a verdict for the defendant. These rulings are assigned as errors. In view of the rule that an order overruling a motion for a nonsuit will not be disturbed when the omission, if any, is subsequently supplied by either party, the adequacy of the motion should be considered with reference to the entire record, so that both of these assignments of error may properly be considered together. Trickey v. Clark, 50 Or. 516, 93 P. 457; Crosby v. Portland Ry. Co., 53 Or. 496, 100 P. 300, 101 P. 204; Taylor v. Taylor, 54 Or. 560, 568, 103 P. 524.

There was a conflict in the evidence as to whether the stone was placed upon its edge with its weight resting on a solid foundation, that is, with the plank supporting it on a cement sidewalk--or whether there was underneath the plank, between it and the sidewalk, about eight inches in depth of débris consisting of irregular shaped stones, bricks, lumber, and earth, making the foundation unstable. Mr. W.M. Blair, secretary of the defendant company, testified to the effect that on the evening of the day on which the stone was deposited it was resting on planks solid and safe; that there was nothing between the plank the stone rested upon and the cement sidewalk that he could see; that he could not see underneath the plank; that he saw the stone in the same place every day until the day of the accident. Andy Rowley, witness for defendant, testified that he delivered the stone at the Lincoln high school on the 17th day of August; that he left it resting, one end on the foundation of the building, and the other end on the plank, and that the plank rested on the sidewalk; that the stone was in a safe condition. There was a direct conflict in the evidence upon this point, and it therefore became a matter for the jury to determine how the stone was placed and whether it was in a reasonably safe condition, or was so situated that there was danger of...