Duntley v. Inman, Poulsen & Co.

• Decision Date: 10 November 1902
• Parties: DUNTLEY v. INMAN, POULSEN & CO.
• Court: Oregon Supreme Court

70 P. 529

42 Or. 334

DUNTLEY v. INMAN, POULSEN & CO.

Supreme Court of Oregon

November 10, 1902

Appeal from circuit court, Multnomah county; Alfred F. Sears, Jr. Judge.

Action by Ida M. Duntley, administratrix, against Inman, Poulsen &amp Co. Judgment for defendant. Plaintiff appeals. Affirmed.

This is an action to recover damages for the death of Marcus H Duntley, plaintiff's intestate, alleged to have been caused by the negligence of the defendant corporation. Duntley, at the time of his death, and for two or three years prior thereto, had been employed by the defendant, running one of its planers. His duty was to start up the machine and run the lumber through it, see that it was kept in condition and, if he found anything wrong with it, to report to the foreman. The planer was operated by a belt running to an iron pulley about 22 inches in diameter, on a revolving shaft, upon which there was also a loose pulley, which revolved around the shaft. When the machine was not in operation the belt was transferred to the loose pulley, and when it was again to be set in motion the belt was slipped back to the tight pulley, immediately taking up the power from the revolutions of the shaft and conveying it to the machine, thus setting it in motion. The slipping back and forth was a part of the duties of the deceased, which he accomplished by means of a stick about 4 feet long, and 1 1/2 inches in diameter. On August 25, 1900, when he moved the belt from the loose to the tight pulley for the purpose of starting the planer, the latter pulley suddenly broke in several pieces, and he was caught by the belt, which parted, was drawn into the machinery, and killed. The pulley and planer were purchased from and set up by a reputable manufacturer, and thoroughly tested, about four years before the accident. They had been in constant and satisfactory use since that time, and the testimony disclosed no apparent cause for the breaking of the pulley. No one saw the accident, and from the testimony it is not clear whether the belt or pulley broke first, or whether the pulley broke because Duntley was drawn into the machinery by the belt, or whether he was drawn into it and killed on account of the breaking of the pulley. Emil Klosner, one of the witnesses for the plaintiff, testified that just a moment before the accident he saw Duntley oiling the machine, and then start to move the belt from the loose to the tight pulley for the purpose of putting it in motion; that immediately thereafter he heard a noise, and, looking up, saw Duntley standing near the pulley, but that he was an instant later drawn into the machinery by the belt; that, at the time the witness looked up, the belt was flying in the air, and he could not tell whether Duntley was struck by a piece of the belt or of the pulley. Johnson, the planer foreman, testified that, a few minutes before the accident, Duntley came to him to ask about some lumber he was going to plane; that he then took his oil can and went to the machine to oil and start it up; that immediately thereafter witness heard a noise, and, looking up, saw Duntley in the machinery. The complaint charges that the defendant was negligent (1) in providing a defective belt; (2) a defective pulley; (3) in failing and neglecting to box in or protect the machinery so as to prevent injuries to persons running or operating the same; and (4) in failing and neglecting to furnish a belt shifter or other suitable appliance by which the belt could have been shifted from the loose to the tight pulley, for the want of which the deceased was compelled to, and did, stand in a place more exposed to injuries from the machinery than he otherwise would have been required to do. The last allegation was stricken out by the court below. An answer was thereupon filed, denying the negligence charged; and upon the trial the defendant had a verdict and judgment, from which the plaintiff appeals.

Henry E. McGinn and V.K. Strode, for appellant.

J.M. Gearin, for respondent.

BEAN, J. (after stating the facts).

The plaintiff requested the court to charge the jury that "There is a rule of law that whenever a thing that causes injury is shown to be under the management of a defendant, and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from the want of care. So, in the case on trial, if you find that the pulley attached to the planing machine was under the management of the defendant, and that the pulley broke, which could not have happened in the ordinary course of things, if those who had the management and control of that pulley used proper care, then, if in that event there is no explanation on the part of the defendant as to breaking of said pulley, you may conclude that the breaking of the pulley arose from the want of care." This was refused, but in its general charge the court instructed the jury that "Negligence is never presumed. Plaintiff in this case has charged it, and she must prove it. It cannot be inferred, from the mere fact that the decedent was injured or the accident happened, that the defendant was negligent." The refusal to give the instruction requested, and the giving of the one quoted, constitute the principal assignments of error on this appeal, and present the question whether proof of the death of the plaintiff's intestate from the breaking of the pulley, in the absence of any explanation by the defendant as to the cause of such breaking, is itself evidence of a want of care on its part. In an action by a passenger against a carrier, proof of the injury itself is prima facie evidence of negligence, for the contract is to carry safely. But in an action by a servant against his master, this rule does not obtain. Before a servant can recover for an injury received by him, he must allege and prove that it was caused by the negligence of the master. It is the duty of the master to provide his servant with a reasonably safe place to work in, reasonably safe tools and appliances to work with, and to exercise reasonable care and diligence to keep them in that condition. The presumption is that he has discharged this duty, and this presumption can only be overcome by affirmative proof, either direct or circumstantial, of negligence on his part. Wood, Mast. & Serv. (2d Ed.) § 382. In some instances the circumstances attending the accident may be sufficient, if unexplained, to justify the jury in drawing an inference of negligence. In such cases, however, the physical facts themselves are evidential, and there is what the law terms evidence of negligence, in conformity with the maxim, "Res ipsa loquitur." But this maxim is a mere rule of evidence, and not a presumption of law. Boyd v. Electric Co., 40 Or. 126, 66 P. 576; Id. (Or.) 68 P. 810. It is, as said by Mr. Justice Holmes in Graham v. Badger, 164 Mass. 42, 47, 41 N.E. 61, "merely a short way of saying that, so far as the court can see, the jury, from their experience as men of the world, may be warranted in thinking that an accident of this particular kind commonly does not...