Erickson v. Edward Rutledge Timber Co.

• Decision Date: 31 December 1921
• Citation: 34 Idaho 754,203 P. 1078
• Parties: HATTIE ERICKSON and GUNHILD KNUTESON, Respondents, v. EDWARD RUTLEDGE TIMBER COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

203 P. 1078

34 Idaho 754

HATTIE ERICKSON and GUNHILD KNUTESON, Respondents, v. EDWARD RUTLEDGE TIMBER COMPANY, a Corporation, Appellant

Supreme Court of Idaho

December 31, 1921

PERSONAL INJURY - NEGLIGENCE - ASSUMPTION OF RISK-EVIDENCE-CONTRIBUTORY NEGLIGENCE-INSTRUCTIONS-MOTION FOR NONSUIT-ORDER TAXING COSTS-REVIEW OF.

1. Held, that the allegations of negligence in the complaint in this case are good as against a general demurrer, and that the court did not err in overruling the demurrer.

2. Specifications of error with regard to the admission of certain exhibits and the admission and exclusion of certain evidence considered, and held that no reversible error was committed by the lower court.

3. A risk which arises from the use of defective machinery or appliances, when the defect is so latent as not to be observed by an employee, is not a risk incident to the employment which is assumed by the employee.

4. The question of the assumption of risk is a question of fact, and is properly submitted to the jury.

5. Held, that the lower court committed no prejudicial error in the giving or refusal to give certain instructions.

6. Where sufficient competent evidence is submitted by the plaintiff in a personal injury action to make out a prima facie case, the court does not err in denying a motion for nonsuit at the close of plaintiff's case or after all the testimony has been introduced. Proof of contributory negligence is a matter of defense.

7. Held, that the action of the lower court in taxing costs of witness fees and mileage against appellant is subject to review by this court under the provisions of C. S., secs 7163 and 6879.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. R. N. Dunn, Judge.

Action for damages for death caused by negligence. Judgment for plaintiff, order denying a motion for new trial, and order taxing costs. Affirmed.

Judgment affirmed. Costs awarded to respondents.

Robt. H. Elder and Ralph S. Nelson, for Appellant.

The plaintiffs have offered no evidence of any fault or negligence on the part of the defendant company, and said cause should not have been submitted to the jury upon a mere description of the accident. (4 Labatt on Master & Servant sec. 1602; Soderman v. Kemp, 145 N.Y. 427, 40 N.E. 212; McDonnell v. Oceanic Steam Nav. Co., 143 F. 480, 74 C. C. A. 500; Schandrew v. Chicago, St. P. M. & O. R. Co., 142 F. 320, 73 C. C. A. 430; Chicago & N.W. R. Co. v. O'Brien, 132 F. 593, 67 C. C. A. 421; Pellerin v. International Paper Co., 96 Me. 388, 52 A. 842; Minty v. Union P. R. R. Co., 2 Idaho 471, 21 P. 660, 4 L. R. A. 409; Goure v. Story, 17 Idaho 352, 105 P. 794.)

Where the facts are undisputed and but one deduction can be drawn therefrom, the question of negligence is purely one of law. (Wheeler v. Oregon R. & Nav. Co. , 16 Idaho 375, 102 P. 347.)

The mere fact that the servant received injury does not establish even prima facie the negligence or breach of duty of the master. (Essex County Electric Co. v. Kelly, 57 N.J.L. 100, 29 A. 427; Patton v. Texas & P. R. Co., 179 U.S. 658, 21 S.Ct. 275, 45 L.Ed. 361; Levins v. Bancroft, etc., 114 La. 105, 38 So. 72; 4 Labatt on Master and Servant, sec. 1600, p. 4858, and cases cited.)

"Before the servant can recover, he must show that the injury did not arise from a defect, obvious to himself, or which by the exercise of ordinary care, he might have known." (Minty v. Union P. R. Co., supra; Drake v. Union P. Ry. Co., 2 Idaho 487, 492, 21 P. 560; Rippetoe v. Feely, 20 Idaho 619, 119 P. 465; Quigley v. Thomas G. Plant Co., 165 Mass. 368, 43 N.E. 205; Rooney v. Sewall & Day Cordage Co., 161 Mass. 153, 36 N.E. 789; Monte v. Wausau Paper Mills Co., 132 Wis. 205, 111 N.W. 1114; Price v. United States Baking Co., 130 Mich. 500, 90 N.W. 286; Peterson v. Sherry Lumber Co., 90 Wis. 83, 62 N.W. 948; Barnsdall Oil Co. v. Leahy, 195 F. 731, 115 C. C. A. 521; Griffith v. Washington Water Power Co., 102 Wash. 78, 172 P. 822.)

Lynn W. Culp, for Respondents.

"An employee does not, because he knows of one defect, take the risk of another of which he has no knowledge. If both contribute to injure him, he is entitled to recover, provided the accident would not have happened but for the unknown defect." (Missouri P. R. Co. v. Somers, 78 Tex. 439, 14 S.W. 779.)

"Where the facts are in dispute and from them reasonable and prudent men might disagree as to the question of negligence, that question, then, becomes a question of fact, and, under proper instructions, must be submitted to the jury." (Tucker v. Palmberg, 28 Idaho 693, 155 P. 981; Swanstrom v. Frost, 26 Idaho 79, 140 P. 1105.)

It was not the duty of the deceased to make an inspection, especially where he had a right to rely on the master, whose duty it was to furnish him with a reasonably safe place in which to work. (Cnkovch v. Success Mining Co., 30 Idaho 623, 166 P. 567, and cases cited.)

Being aware of the dangerous condition of its instrumentalities, it was the duty of the master to warn its servant in relation thereto. (Kangas v. National Copper Min. Co., 32 Idaho 602, 187 P. 792, and cases cited; Ramon v. Interstate Utilities Co., 31 Idaho 117, 170 P. 88.)

BUDGE, J. Rice, C. J., and McCarthy and Lee, JJ., and Featherstone, District Judge, concur.

OPINION

BUDGE, J.

This is an action by respondents for damages occasioned by the death of Severt Knuteson, alleged to be due to injuries sustained by reason of appellant's negligence.

From the record it appears that appellant, a Washington corporation, since prior to August 29, 1916, has owned, controlled and operated a lumber manufacturing plant near Coeur d'Alene, Idaho, from which mill lumber is carried on conveyor chains to a platform, where it is loaded upon small cars or trucks, which when loaded are placed crosswise on tracks upon transfer cars, and secured thereon by clamps to be placed on the rails or under the wheels, or by beveled pieces of 2x4 timber; each transfer car carrying two such cars or trucks, which are then conveyed in a westerly direction along a main transfer track extending about 1,200 feet along one side of the lumber-yard; that connecting at right angles to the main transfer track are 13 yard tracks, numbered from 1 to 13, so constructed that the loaded cars or trucks may be pushed from the transfer cars on to said tracks. Two transfer cars are operated together, one being a trailer and the other a power car, equipped with a lever and grip attachable to an endless cable moving at the rate of four or five miles per hour, and controlled by a "gripman" at the front of the power car.

At the point of connection of the transfer track and each of the thirteen yard tracks, a head-block or yard-bumper was provided for the purpose of elevating such yard track to the level of the tracks upon the transfer car, so that the trucks or cars thereon might be pushed from the transfer car on to the yard track, or vice versa. These bumpers were constructed of square timbers about 25 feet long, placed one above the other, to a height of about 14 inches; and upon the face of the west half of the bumper at track 2, a piece of 2"x8" timber had been spiked, so that in passing that station at the east end the transfer car missed the bumper about four inches, while at the west end it rubbed against the surface of the bumper.

The transfer cars were constructed of four steel car-wheels connected with axles on which rested the platform and tracks. In the sides of the platform, uncovered openings were left wide enough to permit the wheels to extend up above the surface of the platform about two and one-half inches, and leaving a space about four inches in width between the outer surface of the wheel and the outer margin of the platform.

Deceased was employed in appellant's mill for a considerable time prior to August 29, 1916, in moving lumber from the mill to piles in the yard. On the morning of said day, he was engaged with two others in transferring four cars loaded with lumber, upon two transfer cars. The rear car upon the trailer was unloaded at yard track No. 1, after which deceased remained upon the trailer. Upon arriving opposite track No. 2, and hearing cries of distress, the gripman stopped the cars and, going back to the trailer, it was found that in some manner deceased had caught his foot and leg between the side of the trailer and the headblock with the 2"x8" strip nailed thereto at track No. 2, resulting in mangling and nearly severing the deceased's leg, from which injury he died a few hours later at a Coeur d'Alene hospital.

Respondent Gunhild Knuteson was deceased's wife, and Hattie Erickson, his daughter, both of whom were dependent upon him for support.

The cause was tried November 23, 1920, under a stipulation that the evidence there adduced should consist entirely of evidence submitted in a former trial which occurred in the fall of 1917, in so far as such evidence should be material, competent and relevant. (See Erickson v. Rutledge Timber Co., 33 Idaho 179, 191 P. 212.)

The jury found for respondents in the sum of $ 7,750, for which amount judgment was entered in respondents' favor. Appellant moved for a new trial, which motion was denied. After judgment respondents served and filed a memorandum of costs and disbursements, wherein they claimed witness fees and mileage for witnesses. Appellants filed a motion to tax costs, and although no witnesses appeared at said trial, the court allowed certain witness fees.

This appeal is from the judgment, the order denying a motion for new trial, and the order taxing costs.

Appellant makes forty-two assignments of error and we will discuss such of these assignments as we deem necessary for the proper disposition of this case...