Fisher v. Morris P. Kirk & Son, Inc.

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: Before McALLISTER; KING
• Citation: Fisher v. Morris P. Kirk & Son, Inc., 347 P.2d 851, 219 Or. 402 (Or. 1959)
• Decision Date: 10 December 1959
• Parties: Edward D. FISHER, Appellant, v. MORRIS P. KIRK & SON, INC., a corporation, Respondent, and James K. Miller, Defendant.

Page 851

347 P.2d 851

219 Or. 402

Edward D. FISHER, Appellant, v. MORRIS P. KIRK & SON, INC., a corporation, Respondent, and James K. Miller, Defendant.

Supreme Court of Oregon, Department 2.

Argued Nov. 19, 1959.

Decided Dec. 10, 1959.

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

Winfrid K. Liepe, Portland, argued the cause for respondents. With him on the briefs were Maguire, Shields, Morrison & Bailey and Howard K. Beebe, Portland.

Before McALLISTER, C. J., and ROSSMAN, SLOAN and KING, JJ.

KING, Justice pro tem.

This is an action for damages for personal injuries. Plaintiff claims both under the Employers's Liability Act and under common-law negligence.

After the plaintiff had completed his case, the lower court granted defendant's motion for nonsuit and plaintiff appealed.

There is just one assignment of error, namely: The court erred in sustaining defendant's motion for nonsuit.

The plaintiff, Edward D. Fisher, was a 44-year-old truck driver regularly employed as such by Consolidated Freightways. He had been working for the same employer for approximately 10 years prior to the date of the accident on October 11, 1954.

The defendant, Morris P. Kirk & Son, Inc., was a Nevada corporation, with smelter and warehouse in Portland, Oregon. In connection with its warehouse it has a loading platform which abuts upon the railroad track, from which the defendant both receives and makes freight shipments. The loading platform parallels the southerly side of the railroad track and is 68 feet 2 inches in length and 17 feet 11 inches in width. The surface of the loading platform or dock is of asphaltic concrete and is about 3 feet 4 inches above ground level. The loading and unloading from railroad cars is done along the northerly side of the dock, principally near the east end.

The defendant's warehouse building extends along the easterly end of the dock from near the northeast corner thereof, southerly for a considerable distance south of the southeast corner of the dock.

On the west another of defendant's buildings extends from the south up to the dock and the northeast corner of that building is 3 feet east of the southwest corner of the dock. On the south side of the dock there is a ramp 10 feet wide extending from the south side of the dock near the east end thereof and along the west side of the main warehouse building. Approximately 7 feet west of where that ramp connects with the dock is a light pole, set very close to the dock. This leaves a space of about 47 feet 4 inches along the south side of the dock in which trucks can back up to it and load or unload cargo and freight.

On October 11, 1954, there was no railing around the dock and no bumpers around the edges, except a 6 X 6, 18 feet long, from a point about 14 feet west of the northeast corner, along the north side, where railroad cars were unloaded and, of course, the building across the east end.

For over five years the plaintiff, as driver for and employee of Consolidated Freightways, had quite regularly called at defendant's warehouse and loading platform to pick up freight, consisting usually of steel or metal, often in the form of little bars weighing about 40 pounds each. At one time his trips to defendant's premises were as often as once a day, and at the time of the accident they were about once a week.

On the 11th of October, 1954, the plaintiff was driving his employer's truck and set of doubles, or the trailer which connects onto the tractor or truck and another trailer which connects onto the rear of the first one. He disconnected his rear trailer near the entrance to the defendant's property and proceeded to back the front box or trailer up to the south side of the dock.

A hyster, 3 feet in width and 7 feet long, with the lifts drawn in or not extended, was in the front box or trailer. The hyster was brought along for the purpose of loading the freight and was part of the equipment to be furnished by Consolidated Freightways.

As the bed of the trailer was considerably higher than the top of the dock, it was necessary to have a steel plate or ramp from the trailer bed to the dock. The plaintiff went in the warehouse and asked the defendant's bookkeeper to bring out the defendant's hyster to lift the steel ramp for him. This the bookkeeper did as an accommodation and left immediately after raising the ramp and while the plaintiff and his helper were fastening it up and connecting on another short piece of steel.

The plaintiff then proceeded to back the hyster out of the trailer. His helper was engaged in other activities about the truck and did not see the backing out of the hyster. The hyster was in reverse gear and idling, and plaintiff's foot was on the brake as he came down the ramp. The maximum speed the hyster could make in reverse was about five miles per hour. As he reached the bottom of the ramp the hyster was turned so that it backed toward the west end of the dock. As he turned, the plaintiff accelerated the machine and looked to the left or east, but not to the right or west until he was near the west edge of the dock. He then put his brake on hard and slid right off the dock. It had been raining and the dock was wet with some pools of water standing on it.

The hyster teetered on the edge of the dock and then tipped over and pinned the plaintiff's leg under the edge of it, causing bruising, severe breaks and eventually three different amputations. The injuries were severe and permanent and resulted in the final amputation of plaintiff's left leg a few inches above the knee.

As mentioned before the defendant moved for a nonsuit at the close of plaintiff's case in chief. The motion was quite long and will not be set out here verbatim. Suffice it to say that among other things the defendant contended there was not sufficient evidence to go to the jury under either the theory of violation of the Employers' Liability Act or under the theory of common-law negligence.

In determining this question it will be well to consider it in two phases: (1) Was there sufficient evidence to go to the jury under the theory of a violation of the Employers' Liability Act; and (2) was there sufficient evidence to go to the jury on the theory of common-law negligence? In approaching the general question raised by motion for nonsuit in two phases, it is not to be considered as a departure from the firmly-established rule in this state that the Employers' Liability Act does not create a new cause of action, but only the standard of care to be exercised. Shelton v. Paris, 199 Or. 365, 261 P.2d 856; Coomer v. Supple Investment Co., 128 Or. 224, 274 P. 302; Mallatt v. Ostrander Ry. & Timber Co., D.C., 46 F.Supp. 250.

In the present case the plaintiff, Edward D. Fisher, was not an employee of the defendant Morris P. Kirk & Son, Inc., but was actually an employee of Consolidated Freightways. There was no actual contractual relationship in the nature of employment between the plaintiff and the defendant. If the Employers' Liability Act applies in this case between the plaintiff and the defendant, it must be under the theory of a third-party employer, and under what is called the 'and generally' section of the statute, which provides as follows:

'654.305. Generally, all owners, contractors or subcontractors and other persons having charge of, or responsible for, any work involving a risk or danger to the employes or the public, shall use every device, care and precaution which it is practicable to use for the protection and safety of life and limb, limited only by the necessity for preserving the efficiency of the structure, machine or other apparatus or device, and without regard to the additional cost of suitable material or safety appliance and devices.'

This court has many times applied the facts of various cases to the above statute. In a very recent instance, on April 8, 1959, in Byers v. Hardy, Or., 337 P.2d 806, 809, Mr. Justice Sloan said:

'The Employers' Liability Act makes no provision for a so-called third party action similar to that found in the Workmen's Compensation Act. It is only the reference of risk and danger to 'the public' (ORS 654.305) which permits such an action to be brought at all. This court has consistently held that it is not every member of the public that is thus protected. It is only those whose employment or duties require them to be about machinery of an employer other than his own or whose duties may require such person to expose himself in or about hazardous conditions or structures of such other employer which are prohibited or circumscribed by the Act. It must be a hazard or risk which the employer has created or permits to exist and which is within the control of the employer sought to be held. There must likewise be a commingling of function or duty of the...