Carr v. Wallace Laundry Co.

• Citation: 31 Idaho 266,170 P. 107
• Parties: WILLIAM CARR, Appellant, v. WALLACE LAUNDRY COMPANY, a Corporation, Respondent
• Decision Date: 09 January 1918
• Court: United States State Supreme Court of Idaho

170 P. 107

31 Idaho 266

WILLIAM CARR, Appellant, v. WALLACE LAUNDRY COMPANY, a Corporation, Respondent

Supreme Court of Idaho

January 9, 1918

NEGLIGENCE-CONTRIBUTORY NEGLIGENCE-INVITEE-DUTY TO WARN OF HIDDEN DANGER-QUESTION FOR THE JURY.

1. As between the proprietor of the premises and the employee of an independent contractor doing work thereon, the employee is an invitee upon the premises.

2. A person who invites another to come on his premises upon a business in which both are concerned is bound to take care that his premises and all appliances provided by the owner as incident to the use of his premises are safe for that other person to come upon and use them as required, or else to give due warning of any danger to be avoided.

3. Where an invitee upon the premises has been injured by an unguarded set screw protruding from a revolving shaft, it becomes a question for the jury to say, as a matter of fact whether the proprietor of the premises has been reasonably diligent to provide a safe place for the invitee to do his work.

4. Where an invitee upon the premises was not warned of the existence of an unguarded protruding set-screw upon a revolving shaft, and was injured thereby, it cannot be said as a matter of law, that he was guilty of contributory negligence in the absence of knowledge of the existence of the set-screw, or unless as a reasonably prudent person he should have known of its existence.

5. Negligence and contributory negligence involve mixed questions of law and fact, but where, under the facts of the case, the minds of reasonable men might differ as to the existence of negligence or contributory negligence, they are questions for the jury.

[As to the distinction between licensee and invitee, see note in Ann.Cas. 1913C, 570]

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. William W. Woods, Judge.

Action for damages for negligence resulting in personal injury to invitee. Judgment for defendant upon a directed verdict. Reversed.

Judgment reversed and a new trial granted. Costs awarded to the appellant.

John P Gray, James A. Wayne and Therrett Towles, for Appellant.

Plaintiff was rightfully upon the premises by invitation of defendant, it was the duty of defendant to provide the plaintiff with a reasonably safe place to work, and to provide him with reasonable protection against the consequences of hidden or concealed dangers known to the defendant. (Gagnon v. St. Maries Light & Power Co., 26 Idaho 87, 141 P. 88; Bennett v. Louisville & Nashville R. R. Co., 102 U.S. 577, 26 L.Ed. 235; Cooley on Torts, 604-607; New York Lubricating Oil Co. v. Pusey, 211 F. 622, 129 C. C. A. 88, Liebold v. Green, 69 Ill.App. 527.)

Ordinarily it is for the jury to decide whether it is or is not negligence to operate machinery in which are revolving shafts, couplings and like contrivances held in place by unguarded protruding set-screws. (Prattville Cotton Mills Co. v. McKinney, 178 Ala. 554, 59 So. 498; York Lumber Co. v. Dexter, 114 Ark. 573, 169 S.W. 315; Schellin v. North Alaska Salmon Co., 167 Cal. 103, 138 P. 723; Halpin v. National Safe Deposit Co., 184 Ill.App. 13; Gunther-Wright Mach. Co. v. Lancaster, 145 Ky. 78, 140 S.W. 58; Barr v. Guelph Patent Cask Co., 129 Mich. 278, 88 N.W. 640; Pruke v. South Park Foundry Mach. Co., 68 Minn. 305, 71 N.W. 276; Dowling v. Allen, 74 Mo. 13, 41 Am. Rep. 298; Lobban v. Wabash Ry. Co., 159 Mo.App. 464, 141 S.W. 440; Eplee v. Southern R. Co., 155 N.C. 293, 71 S.E. 325; Roth v. Northern P. Lumbering Co., 18 Ore. 205, 22 P. 842; Planters' Oil Co. v. Keebler (Tex. Civ.), 170 S.W. 120; Ockey v. Bingham-New Haven Copper & Gold Min. Co., 47 Utah 315, 154 P. 586; Bush v. Independent Mill Co., 54 Wash. 212, 103 P. 45; Olson v. Seldovia Salmon Co., 88 Wash. 225, 152 P. 1033; Janiak v. Milwaukee Western Fuel Co., 156 Wis. 544, 146 N.W. 788; Mountain Copper Co. v. Pierce, 136 F. 150, 69 C. C. A. 148; 4 Commentaries on the Law of Negligence, sec. 4022; Columbia Box & Lumber Co. v. Drown, 156 F. 459, 84 C. C. A. 269.)

Where upon all the facts and circumstances there is a reasonable chance or likelihood of the conclusions of reasonable men differing, the question is one for the jury. (Fleenor v. Oregon Short Line R. R. Co., 16 Idaho 781, 102 P. 897; Wheeler v. Oregon R. & Nav. Co., 16 Idaho 375, 102 P. 347; Adams v. Bunker Hill etc. Min. Co., 12 Idaho 637, 89 P. 624, 11 L. R. A., N. S., 844; Tucker v. Palmberg, 28 Idaho 693, 155 P. 981.)

Contributory negligence is not imputable to a person for failing to look for danger, when, under the surrounding circumstances, the person sought to be charged with it had no reason to suspect that danger was to be apprehended. (Langan v. St. Louis etc. R. Co., 72 Mo. 392; Moulton v. Aldrich, 28 Kan. 300; Missouri P. Ry. Co. v. Johnson, 69 Kan. 721, 77 P. 576; Greenleaf v. Dubuque & S.C. R. Co., 33 Iowa 52; Baldwin v. St. Louis K. & N.W. Ry. Co., 63 Iowa 210, 18 N.W. 884; New York Lubricating Oil Co. v. Pusey, supra; National Life Ins. Co. v. McKenna, 226 F. 165, 141 C. C. A. 163.)

Contributory negligence is a matter for the jury. (Staab v. Rocky Mountain Bell Tel. Co., 23 Idaho 314, 129 P. 1078; Jones v. National Laundry Co., 66 Ore. 218, 133 P. 1178; Washington & G. R. Co. v. McDade, 135 U.S. 554, 10 S.Ct. 1044, 34 L.Ed. 235.)

Walter H. Hanson and W. H. Plummer, for Respondent.

The conduct of plaintiff, as indicated by his own testimony, shows that he failed to exercise ordinary care for his own safety.

"If the evidence is such that but one conclusion can be reached, then the question becomes one of law." (Rippetoe v. Feely, 20 Idaho 619, 119 P. 465; Bundy v. Union Iron Works, 46 Wash. 231, 89 P. 545; Day v. Cleveland C. C. & St. L. Ry. Co., 137 Ind. 206, 36 N.E. 854.)

"If a servant voluntarily and unnecessarily puts himself into a dangerous position, where there are other positions which he may take, in connection with the discharge of his duties, which are safe, or reasonably so, he cannot recover damages for an injury contributed to by his negligence in so doing." (26 Cyc. 1249; Vicksburg Mfg. Co. v. Vaughn (Miss.), 27 So. 599; Choctaw O. & G. R. Co. v. Stalling, 70 Ark. 603, 70 S.W. 303; Kennedy v. Merrimack Pav. Co., 185 Mass. 442, 70 N.E. 437; Glassheim v. New York Economical Printing Co., 13 Misc. 174, 34 N.Y.S. 69; Quirouet v. Alabama G. S. R. Co., 111 Ga. 315, 36 S.E. 599; Southern Ry. Co. v. Harbin, 110 Ga. 808, 36 S.E. 218; Coyle v. Pittsburg, C. C. & St. L. Ry. Co., 155 Ind. 429, 58 N.E. 545; Haynes v. Fort Dodge & O. R. Co., 118 Iowa 393, 92 N.W. 57; Jenkins v. Maginnis Cotton Mills, 51 La. Ann. 1011, 25 So. 643; Washington & G. R. Co. v. McDade, 135 U.S. 554, 10 S.Ct. 1044, 34 L.Ed. 235.)

RICE, J. Budge, C. J., and Morgan, J., concur.

OPINION

RICE, J.

This action was instituted by the appellant to recover damages for personal injuries received by coming in contact with a protruding unguarded set-screw on the main driving shaft of respondent's laundry. At the close of appellant's testimony, the respondent moved for a nonsuit, which motion was denied. At the close of the respondent's evidence the motion for nonsuit was renewed and motion made that the jury be instructed to return a verdict in favor of the defendant. The latter motion was granted by the trial court, and the jury returned a verdict in favor of the defendant. Judgment was entered accordingly, from which judgment this appeal is prosecuted.

The appellant was a servant of a contracting painter who had been employed to paint the interior of respondent's plant. One coat of paint had been applied to the ceiling and walls of the main room, and appellant had been engaged for two days, together with other painters, in applying the second coat. While painting the ceiling above the main driving shaft, which extended lengthwise of the laundry, and while reaching over and about a foot beyond the driving shaft, the sleeve of appellant's jumper was caught by the protruding set-screw. It appears that the main shaft from which the set-screw protruded was about one foot, or perhaps a little more, below the ceiling of the laundry, and was held in place by hangers attached to the ceiling. The set-screw held in place collars around the shaft, which prevented the shaft from slipping or moving out of place. The main shaft was of steel, about two inches in diameter, and at the time of the accident was revolving at the rate of 165 revolutions per minute.

It appears that appellant received a general warning to be careful, but there is no evidence that he was warned of the existence of the set-screw, or that he actually knew of its presence. It was shown by his cross-examination that he did not look to see whether or not there was a set-screw protruding from the shaft or the collar.

It must be conceded that appellant in this case was at least an invitee upon the premises of respondent corporati...