Claris v. Oregon Short Line Railroad Company

• Decision Date: 02 June 1934
• Docket Number: 6104
• Parties: GEORGE P. CLARIS, Appellant, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Respondent
• Court: Idaho Supreme Court

33 P.2d 348

54 Idaho 568

GEORGE P. CLARIS, Appellant, v. OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Respondent

No. 6104

Supreme Court of Idaho

June 2, 1934

TRIAL-NONSUIT-DIRECTED VERDICT-MASTER AND SERVANT-SAFETY OF TOOLS-DUTY OF MASTER-NEGLIGENCE-QUESTIONS FOR JURY-ASSUMPTION OF RISK-QUESTION OF LAW, WHEN-PLEADING-AMENDMENTS.

1. On motion for nonsuit or directed verdict, evidence should be construed most favorably to plaintiff, and motion denied where different inferences may reasonably be drawn from the facts, whether disputed or undisputed.

2. Duty rests upon master not only to furnish employees with safe tools, but to keep them safe.

3. In machinist's action against railroad for loss of eye through use of grease gun, whether grease gun was properly constructed or equipped or in proper condition held for jury (Federal Employers' Liability Act, 45 U.S. C. A., secs 51-59).

4. In machinist's action against railroad for loss of eye through use of grease gun, whether assistant foreman of roundhouse was vice-principal of railroad with authority to inform machinist that grease gun was in a serviceable condition held for jury (Federal Employers' Liability Act, 45 U.S. C. A., secs. 51-59).

5. In machinist's action against railroad for loss of eye through use of grease gun, burden was upon railroad to prove assumption of risk (Federal Employers' Liability Act, 45 U.S. C. A., secs. 51-59).

6. Assumption of risk becomes a question of law only in a clear case, and, where different inferences may be drawn from the evidence, assumption of risk is a question of fact for jury.

7. Great liberality is required in allowance of amendments to pleading in furtherance of justice (I. C. A., secs. 5-904, 5-905).

8. In machinist's action against railroad for loss of eye, through use of grease gun, refusal to permit trial amendment, at close of evidence, charging knowledge of presence of water in grease gun and failure to warn plaintiff, held error, where defendant had introduced evidence to show that water was placed in grease gun by its own employees without its knowledge and no surprise was claimed (Federal Employers' Liability Act, 45 U.S. C. A., secs. 51-59; I. C. A., secs. 5-904, 5-905).

APPEAL from the District Court of the Sixth Judicial District, for Bingham County. Hon. Guy Stevens, Presiding Judge.

Action for damages for negligence. Motion for directed verdict granted in favor of respondent. Reversed and new trial granted.

Judgment reversed with instructions. Costs awarded to appellant.

Joseph H. Peterson, Walter H. Anderson and Milton E. Zener, for Appellant.

The court is authorized to grant a nonsuit or directed verdict only

"When it is inconceivable on any reasonable hypothesis that a mind, desiring solely to reach a just and proper conclusion in accordance with the relevant and governing principles of law after viewing the evidence in the light most advantageous to the plaintiff, could determine in his favor the controlling issues involved." (Jester v. Philadelphia B. & W. R. Co., 267 Pa. 10, 109 A. 774; 64 C. J. 407; Anderson, An Automobile Accident Suit, P. 1177; Petres v. Alexy, 104 Pa. Super. Ct. 93, 157 A. 624.)

Master is liable in failing to furnish safe tools in the first instance, but is likewise liable in failing to keep them safe. (Thompson on Negligence, sec. 3995; Tomaselli v. John Griffiths Cycle Corp., 9 A.D. 127, 41 N.Y.S. 51; 4 Labatt on Master and Servant, 1498.)

A servant does not assume the risk when he is furnished a defective tool. (Manning v. Portland Steel Ship Bldg. Co., 52 Ore. 101, 96 P. 545; Panhandle & S. F. Ry. Co. v. Fitts, (Tex. Civ. App.) 188 S.W. 528.)

George H. Smith and H. B. Thompson, for Respondent.

A defendant is not liable for negligence unless it is proved that the appliance was so constructed that the master knew, or in the exercise of reasonable care should have known, or could have reasonably foreseen and anticipated, that the result or a similar result would naturally or probably follow. (45 Corpus Juris, 655, "Negligence," sec. 27; also, 45 Corpus Juris, 659, 660; 20 R. C. L. 11, 12.)

One seeking to hold the master liable for the act of a superior servant is under the burden of establishing that the act was within the scope of the employment of such servant. (Obertoni v. Boston & Maine Railroad, 186 Mass. 481, 71 N.E. 980, 67 L. R. A. 422; 39 Corpus Juris, 545, 546; Labatt, Master and Servant, 2d ed., sec. 1466.)

BUDGE, C. J. Givens, Holden and Wernette, JJ., concur, Morgan, J., concurs in the conclusion.

OPINION

BUDGE, C. J.

March 30, 1933, appellant instituted this action under the Federal Employers' Liability Act for the recovery of damages in the sum of $ 35,000 for the loss of his eye by reason of the alleged negligence of respondent.

Appellant, an employee of respondent, working as a machinist in the shops at Pocatello and while engaged in greasing a rod bushing as a part of the repair of an engine used in interstate commerce, turned a lever or value to actuate the operation of a grease gun built and maintained by respondent and located in its auxiliary machine-shop and a volume of grease, water, metal shavings and metal borings came from the grease gun with great force, striking appellant in the face and eyes, particularly in the left eye, and particles of metal, grease, water, etc., became imbedded in and under the surface of appellant's left eye and as a result he became blind and it was necessary to remove the eye from the socket. The complaint contained allegations of negligence in the construction of the grease gun to the following effect: That there was no manner of ascertaining the amount of pressure in said grease gun when the air was turned on, and that there was no way to regulate the pressure thereon and the air pressure supplied to the gun varied; that the grease gun was not equipped with any spring or locking device by which dangerous or excessive amounts of air pressure could be regulated, stopped or held; that there was permitted to accumulated in the air and therefore travel into the chamber of said grease gun, behind and in front of the piston, water, grease, and other substances, which would come out with great force and violence upon air being applied; that the piston used in said grease gun was inadequate and did not fit the cylinder snugly and permitted substances to accumulate in the cylinder in back and in front of said piston; that there was permitted to condense in the air-pipes and tanks and in said grease gun water by condensation and no device was attached to said grease gun for draining said water from the pipes, tanks, and said grease gun, which water would come out with great force and violence when the air was applied, there being no device for the regulating of the air pressure; that the grease was so kept that it was permitted to become impregnated with dirt, ashes, steel and other filings, and without the same being removed therefrom or any inspection for that purpose was put in the grease gun. These allegations were denied by respondent and the defense of assumption of risk was pleaded. After the court had announced its intention to direct a verdict for respondent, appellant moved to amend the complaint to allege the following:

"That said defendant was further negligent in that at the time of said accident, the said defendant well knew that water was in said grease gun and failed to notify the plaintiff thereof or of the danger of using the same in said condition."

At the close of appellant's case respondent interposed a motion for nonsuit to the effect that no negligence had been established as against respondent, which motion was denied. At the conclusion of all the evidence respondent moved for a directed verdict, the motion being in part as follows: "first, that the evidence is insufficient to establish that the plaintiff was engaged in interstate transportation or commerce within the contemplation of the Federal Employers' Liability Act at the time of the occurrence complained of; second, that it appears from the undisputed evidence that water was placed in the grease gun, and that the placing of water in the grease gun was the proximate cause of the plaintiff sustaining the injury to his eye and without which it would not have happened; and third, and finally to recapitulate the grounds stated in the motion for nonsuit and making that apply to all of the evidence for the entire record as it finally is in place of merely at the end of the testimony as appearing at that time in the evidence; that the evidence is insufficient to support a finding that the defendant knew, or was charged with notice that the instrumentality as operated and employed by the defendant might probably, probable being the legal test and not probably, or even possibly fail in the respect alleged in the complaint causing any injury to anyone similar to this, or to the plaintiff in particular, or one of a class who might be injured."

The appeal prosecuted seeks a review of the action of the trial court in granting the motion of respondent for a directed verdict.

Appellant specifies and relies upon five assignments of error, the first two being predicated upon the action of the court in granting respondent's motion for a directed verdict, the third attacks the action of the trial court in refusing to permit appellant, at the conclusion of all of the evidence, to file an amendment to the...