Eitel v. Times, Inc.

• Decision Date: 11 May 1960
• Parties: , 5 A.L.R.3d 86 Ella EITEL, Respondent, v. TIMES, INC., a corporation, Appellant.
• Court: Oregon Supreme Court

Page 485

352 P.2d 485

221 Or. 585, 5 A.L.R.3d 86

Ella EITEL, Respondent, v. TIMES, INC., a corporation, Appellant.

Supreme Court of Oregon, Department 1.

Argued March 16, 1959.

Decided May 11, 1960.

J. B. Bedingfield, Sr., argued the cause for appellant. On the briefs were Bedingfield, Grant & Bedingfield, Coos Bay.

Philip A. Levin, Portland, argued the cause for respondent. With him on the brief were Peterson, Pozzi & Lent, Portland.

Before McALLISTER, C. J., and SLOAN, O'CONNELL and HARRIS, JJ.

O'CONNELL, Justice.

The plaintiff brings this action to recover damages for personal injuries resulting from the alleged negligence of the defendant. Plaintiff alleges that at about 8:55 p. m., January 7, 1956, she tripped on a wire on the sidewalk in front of the bus terminal operated by Gorst & King, a corporation, in North Bend, Oregon. Plaintiff contends that the wire had been taken from a bundle of newspapers deposited by the defendant on the sidewalk near the scene of the accident and as a result of defendant's negligent conduct in causing the wire to be left on the sidewalk the plaintiff was injured.

At the close of plaintiff's case in chief the defendant moved for an involuntary nonsuit which was denied, whereupon the defendant rested. Defendant requested the court to give the following instruction, which request was refused.

'I instruct you that there is no evidence in this case that there was any negligence upon the part of defendant in this case which proximately caused any injury to plaintiff. Therefore, I instruct you that it is your duty to return a verdict in favor of the defendant and against the plaintiff.'

Defendant excepted to the court's refusal to give the instruction. The jury returned a verdict for the plaintiff in the sum of $12,000 general damages and $8,345.75 special damages. On appeal defendant assigns as error the lower court's refusal to instruct the jury as requested. The requested instruction was tantamount to a motion for a directed verdict and the refusal to give it was a sufficient basis for an assignment of error. Inwall v. Transpacific Lumber Co., 1941, 165 Or. 560, 108 P.2d 522; Carty v. McMenamin & Ward, 1923, 108 Or. 489, 216 P. 228; Dayton v. Fenno, 1921, 99 Or. 137, 195 P. 154; Treadgold v. Willard 1916, 81 Or. 658, 160 P. 803; Merrill v. Missouri Bridge Co., 1914, 69 Or. 585, 140 P. 439. We must decide, therefore, whether there was sufficient evidence to support the verdict.

The defendant publishes a newspaper at Coos Bay, Oregon. Some of the papers are sold in North Bend. Papers which were to be sold on the streets in North Bend were delivered by defendant to the newsboys by depositing the papers in bundles on the public sidewalk at various selected points in the city. The bundles were bound with wire which, when removed, was in the form of a loop. One of these delivery points was in the vicinity of the bus terminal in front of which plaintiff fell. For a period of six months prior to the accident the regular delivery point was on the sidewalk in front of a floral shop approximately sixty feet north of the bus terminal. Delivery was usually made every day except Sunday, at times varying from two o'clock to four o'clock in the afternoon. On some Saturdays the newsboys would pick up their papers at the defendant's plant, in which event no delivery was made at the sidewalk site. There is no evidence as to whether the defendant made a sidewalk delivery on January 7, 1956. It was shown that for some period of time prior to January 7, 1956, the newsboys threw some of the binder wires on the sidewalk or in the street. Some of the wires were placed in trash or garbage cans located nearby. The defendant's agents knew that the newsboys were leaving the wires on the sidewalk. The florist and the manager of the bus terminal notified the defendant of this practice of the newsboys and the defendant promised to 'see to it.'

Plaintiff did not see the wire over which she tripped until after she fell. When she was picked up the wire loop rolled off her foot. She saw the loop lying on the sidewalk after she was picked up. Other witnesses testified that they saw a wire loop on the sidewalk immediately after plaintiff fell. They testified that it was the same kind of wire as that used to bind the defendant's papers, identifying it by the nature of the machine twist which fastened the ends together. The morning after plaintiff's accident a witness picked up a wire loop from the sidewalk in front of the bus terminal. It was not established that this was the same wire as that which tripped plaintiff. The wire which caused plaintiff's fall was not introduced into evidence. A wire loop used by defendant to bind its papers was put in evidence and was identified by witnesses as the same kind of loop as that which was on the sidewalk immediately after the plaintiff fell. There is no evidence that any of the defendant's newspapers were unwrapped by the newsboys on January 7, 1956, or that they threw any wire loops on the sidewalk that day. Bundles of the Oregon Journal and the Oregonian were also customarily delivered near the place where plaintiff fell, the Oregon Journal about sixty feet south of the bus terminal, and the Oregoinan in front of a theater across the street.

Pete Wold, the manager of the bus terminal, testified that at 5:45 p. m. on January 7, 1956, he swept the sidewalk in front of the bus depot and that there were no wires on that part of the sidewalk after that time.

Defendant contends that it is not liable for the conduct of the newsboys in leaving the wire loops on the sidewalk for the reason that the newsboys were not its servants but were independent contractors engaged in the business of buying and selling newspapers as independent merchants.

It is not necessary for us to determine whether or not this contention is sound. Assuming that the relationship between the defendant and the newsboys was that of employer and independent contractor respectively, there is nevertheless a sound basis for defendant's liability on the facts of this case. The complaint is not limited to a charge of vicarious liability; it alleges that defendant itself was negligent in permitting wire to be left on the sidewalk by the newspaper carriers. An employer may be liable for his failure to select a careful contractor. The rule is stated in Prosser on Torts, p. 358 '* * * Where there is a foreseeable risk of harm to others unless precautions are taken, it is his [the employer's] duty to exercise reasonable care to select a competent and careful contractor, and to provide, in the contract or otherwise, for such precautions. So far as he gives directions for the work, furnishes equipment for it, or retains control over any part of it, he is required to exercise reasonable care for the protection of others; and he must likewise interfere to put a stop to any unnecessarily dangerous practices, and make a reasonable inspection of the work after it is completed, to be sure that it is safe.'

There was substantial evidence to show that the defendant was aware of the conduct of the newsboys in leaving the binder wires on the sidewalk and street. We have already alluded to the evidence establishing that the defendant was notified of the dangerous condition created by this course of conduct and the defendant's promise to correct it. Having knowledge of the actual conduct of the newsboys and the hazard which their conduct created, the defendant will not be permitted to insulate itself from liability by asserting that those who were employed to sell its product were independent contractors. The negligence lies in creating a situation which 'involves an unreasonable risk to another because of the expectable action of * * * a third person.' 2 Restatement, Torts, § 302(b), and see also § 449.

The more difficult question presented to us is whether there is sufficient evidence to warrant submitting to the jury the question of the causal connection between defendant's negligence and the plaintiff's injury. Defendant maintains that the proof on this score is so sparse that the jury would be required to engage in conjecture in resolving the question.

The evaluation of the evidence to determine whether a verdict can stand is one of the most difficult tasks presented to the courts. Smith, The Power of the Judge to Direct a Verdict, 24 Colum.L.Rev. 111 (1924). The citation of cases is of little value because the character of the evidence in each case varies and must be tested ad hoc.

The general principle which describes our function in this class of cases is clearly stated in the dissenting opinion of Chief Justice McAllister in Secanti v. Jones, Or.1960, 349 P.2d 274, 277 et seq. The following quotations, used to describe the principle, are worth repeating. In 2 Harper & James, The Law of Torts, § 19.4, p. 1068, it is stated:

"The test is often expressed in this way: where from the facts most favorable to the plaintiff the non-existence of the fact to be inferred is just as probable as its existence (or more probable than its existence), the conclusion that it exists is a matter of speculation, surmise, and conjecture, and a jury will not be permitted to draw it. '[W]here the probabilities are at best evenly balanced between negligence and its absence, it becomes the duty of the court to direct the jury that there is no sufficient proof."'

Prosser on Torts (2nd ed.), § 42, p. 200 expresses the same idea as follows:

"* * * What is required is evidence from which reasonable men may conclude that, upon the whole, it is more likely that there was negligence than that there was not. Where the conclusion is a matter of mere speculation or conjecture, or where the probabilities are at best evenly balanced between negligence and its absence, it becomes the duty of the court to direct the jury that the burden of proof has not been sustained."

Oregon cases which have adopted the foregoing test are set out...