Franklin v. Webber

• Decision Date: 15 July 1919
• Citation: 182 P. 819,93 Or. 151
• Parties: FRANKLIN v. WEBBER.
• Court: Oregon Supreme Court

182 P. 819

93 Or. 151

FRANKLIN v. WEBBER.

Supreme Court of Oregon

July 15, 1919

In Banc.

Appeal from Circuit Court, Umatilla County; G. W. Phelps, Judge.

Proceedings under the Employers' Liability Act by Howard Franklin against Bruno Webber to recover for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

Bruno Webber was engaged in farming about 900 acres of land. The seeding was done with three drills drawn by a caterpillar engine. Between the engine and drills was a cart upon which a supply of wheat was kept, so that for the purposes of description we may say that the seeding was done with a train consisting of a caterpillar engine, a cart and three drills. This train was operated by two persons, an engineer and a drill tender. The engineer ran the engine; and the drill tender kept the drills filled with seed.

Webber employed Howard Franklin to act as drill tender. The plaintiff was injured on November 5, 1916, the second day of his employment. The injury occurred while Franklin was on the engine and at a time when the engine was in motion. Among the parts of the engine was an unguarded shaft. This shaft was revolving, and it caught Franklin's clothing, drew his left leg into the machinery, and seriously injured him.

Franklin was at once taken to a hospital. Webber held an employers' liability insurance policy. On November 28th a couple of weeks after the accident, an agent of the insurance company which had issued the policy called at the hospital where he interviewed Franklin; and as a result of the interview Franklin signed and delivered to the agent a written release which reads as follows:

"For the sole consideration of the sum of one hundred sixty and no/100 dollars, this 28th day of November, 1916, received from Bruno Webber I do hereby acknowledge full satisfaction and discharge of all claims, accrued or to accrue, in respect of all injuries or injurious results, direct or indirect, arising or to arise from an accident sustained by me on or about the 5th day of November, 1916, while in the employment of the above.

"$160.00."

The insurance company paid and Franklin received from it the sum of $160. There is testimony to the effect that the company at some time afterwards, paid doctor and hospital bills aggregating about $600.

The plaintiff brought this action under the Employers' Liability Act. Chapter 3, Laws 1911. The complaint alleges that the duties assigned to plaintiff required him not only to attend to the drills, but also to oil certain parts of the engine, and that this was a work involving risk and danger that the defendant failed to provide any guard or other safety device for the shaft, notwithstanding it was practicable to have guarded the shaft without impairing the efficiency of the machine.

The answer denies the charge of negligence, avers that the plaintiff was hurt by his own sole negligence because his employment did not require him to be on the engine, and pleads a satisfaction of the claim and release from liability.

Besides denials, the reply avers that the injury sustained by the plaintiff, together with an operation performed upon his leg and drugs administered for the relief of pain and suffering had rendered him physically and mentally weak, and that while in such weak condition the insurance company through fraud and fraudulent representations obtained the writing which the defendant relies upon as a release.

A trial resulted in a verdict and judgment for the plaintiff in the sum of $3,791.66. The defendant appealed.

F. S Senn, of Portland (Senn, Ekwall & Recken, of Portland, and Raley & Raley, of Pendleton, on the brief), for appellant.

W. C Winslow, of Salem (Donald W. Miles and W. C. Winslow, both of Salem, and R.I. Keator, of Pendleton, on the brief), for respondent.

HARRIS, J. (after stating the facts as above).

Calling attention to the Employers' Liability Act as diagramed in Camenzind v. Freeland Furniture Co., 89 Or. 158, 168, 174 P. 139, the plaintiff has argued that the words "shafts * * * shall be inclosed," appearing after No. 23 in the diagram, make it the absolute duty of the master to inclose a revolving shaft. The complete clause, containing the quoted words, reads as follows:

"Shafts, wells, floor openings and similar places of danger shall be inclosed."

The term "shaft" has various significations; but the companion words "wells, floor openings," and especially the words "and similar places of danger," make it plain that the "shafts" referred to are openings in the ground or in structures, and not revolving mechanical shafts like the one which injured the plaintiff.

The rule followed in this jurisdiction compelled the plaintiff to bear the burden of showing that it was practicable to guard the revolving shaft. Cameron v. Pacific Lime & Gypsum Co., 73 Or. 510, 517, 144 P. 446, Ann. Cas. 1916E, 769 .

The defendant interposed a motion for a nonsuit, and afterwards he moved for a directed verdict; and he now contends that both motions should have been allowed because there was no evidence to show that defendant was negligent, and because there was no evidence upon which the jury could have found that "it was practicable to guard the shaft without impairing the efficiency of the machine."

Franklin alleged and Webber denied that, when injured, the former was in a place where his duties required him to be. Franklin testified that Webber specifically directed him to oil certain parts of the engine and to do the oiling while the machine was in motion so that "there will be no stops and you will not lose any time." Evidence for the defendant contradicted the testimony of the plaintiff. The issue made by the pleadings was carefully submitted to the jury with appropriate instructions. The verdict of the jury necessarily implies a finding that when injured the plaintiff was on the engine in the performance of duties assigned to him; and hence the verdict forecloses further debate upon the question as to whether or not Franklin was hurt while in the performance of his work.

The defendant says that there was no evidence to show that it was practicable to guard the shaft without impairing the efficiency of the engine. However, Franklin answers by pointing to testimony of an admission made by Webber; but Webber replies by arguing that "such testimony is self-serving, and it does not in any way tend to prove negligence." Franklin testified that Webber came into the hospital at some time after the former was injured, and in the course of a conversation "about how I happened to get hurt" Webber explained that there was not much danger of anybody else getting hurt, and "he said he had fixed the machine; and I asked him how and he said he had put a box over it of some sort; he didn't say what kind, whether it was a wooden box, steel box, or what."

It was competent to show the subsequent installation of a guard...