Freeman v. Wentworth & Irwin, Inc.

Decision Date09 February 1932
Citation139 Or. 1,7 P.2d 796
PartiesFREEMAN v. WENTWORTH & IRWIN, Inc.
CourtOregon Supreme Court

Department 1.

Appeal from Circuit Court, Multnomah County; W. M. Duncan, Judge.

Action by E. D. Freeman against Wentworth & Irwin, Inc. Judgment for plaintiff, and defendant appeals.

Reversed and remanded, with instructions.

Based upon charges of common-law negligence and an alleged failure of the defendant to comply with the requirements of the general clause of this State's Employers' Liability Act (section 49-1701, Oregon Code 1930). the plaintiff instituted this action to recover from the defendant, his employer, the sum of $25,000, which the complaint alleges constitutes the damages he sustained when his right eye was injured in the defendant's automobile repair plant November 15, 1929, by a particle of steel projected into it from a steel shaft struck by the plaintiff's hammer in the course of some repair work in which he was then engaged. The answer denied all of the complaint's averments of negligence, and set forth an affirmative defense which charged the plaintiff with negligence, and which also invoked the doctrine of assumption of risk. Based upon a verdict of a jury, the circuit court entered a judgment in the plaintiff's favor in the sum of $6,000. The defendant appealed.

George Black, Jr., of Portland (Platt, Platt, Fales Smith & Black, of Portland, on the brief), for appellant.

Bert W Henry, of Portland, for respondent.

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

The defendant's plant, in which it conducted the business of selling and repairing motor-trucks, occupied a two-story building 200 by 200 feet in dimensions. The plaintiff had been employed in the service department of that plant for six years as an expert in the repair of that portion of automobile trucks known as the transmission. Referring to this part of trucks, he testified upon direct examination "I was assigned as a specialist to do this particular kind of work," and added that during his six years' employment with the defendant he had repaired about 5,000 transmissions. November 15, 1929, the plaintiff, upon reaching the plant at 8 o'clock in the morning, was assigned to the task of discovering what, if anything, was wrong with the transmission of a disabled truck which had just entered the plant. He was told to hurry as much as possible, because the owner wanted the return of his truck at 11 o'clock a. m. After disengaging the transmission from the chassis, the plaintiff lifted the transmission from its place in the truck to his bench by the use of a crane. He then disassembled the transmission and took the part which he suspected was in need of repair to a vat which contained a chemical compound which, when heated, removed grease from metal. However, the employee in charge of the vat had not yet heated the solution, and therefore the plaintiff returned to his bench and cleaned the grease from the transmission to his satisfaction with a cloth and some hot water. The grease having been thus removed, the plaintiff discovered some breaks in the cleaned part and called them to the attention of his foreman, one Charles Beck. A delay of half an hour ensued before Beck could communicate with the owner and acquaint him with the extent of the needed repairs. In this half-hour's time the plaintiff removed further grease and inspected another part of the transmission. He then voluntarily abandoned work upon this job and did not return to it until 2:30 in the afternoon; the consent of the owner having been obtained in the meantime that the suggested repairs be made. At 3:30 p. m., after the plaintiff had completed the repair of the broken parts and was reassembling the transmission, he found it necessary to strike the end of the shaft with a hammer so as to adjust it into position. The shaft was made of hard steel. The plaintiff struck the blow which he described as a tap, with a ball peen hammer made of steel, and weighing half a pound or less. The hammer belonged to himself, and had been provided in obedience to a custom which required all mechanics to supply their own hand tools. The first tap loosened a fine particle of steel from the shaft, which flew into the plaintiff's right eye.

The complaint alleged that the defendant was negligent: (1) In having "failed to furnish for plaintiff's use a hammer made of soft material"; (2) in having "failed to furnish light for plaintiff to work by"; (3) in having "failed to furnish any adequate cleaning device for the removal of grease and dirt from the used parts"; and (4) in having "failed to arrange for adequate time in which to do the work but required the plaintiff to hurry as much as possible so that the work would be finished and ready for delivery at the time fixed by the defendant."

The first assignment of error challenges the ruling of the circuit court which denied the defendant's motion for a directed verdict. We shall now consider this exception.

While the plaintiff testified that he was told "to hurry it and get it out by 11 o'clock," it will be observed from the testimony reviewed above that the plan to complete the job by 11 o'clock was abandoned when the foreman of the service department was unable to obtain the owner's consent to proceed with the repairs before half past 2 in the afternoon. Plaintiff's injury did not occur until 3:30 p. m. The above-quoted words constitute practically the sole basis of the plaintiff's contention that he was told to hurry. When work was again resumed, no instructions to hurry were given. So much time elapsed from the disassembling of the transmission until 2:30 in the afternoon, when work upon the truck was resumed, that the plaintiff upon his own volition abandoned work upon this job and proceeded with other work. We conclude that this specification of negligence is unsupported by proof.

The charge that the defendant "failed to furnish any adequate cleaning device for the removal of grease" we believe is likewise unsupported by proof. The plaintiff did not testify that the vat with its contents of grease removing chemicals was any more effective as a grease remover than the method which he employed upon discovery that the solution was cold, but testified that it was capable of accomplishing its result quicker. The defendant was not required to provide any specific kind of a grease removing method. Its duty to exercise due care for the safety of its employees was discharged when it had provided a reasonably suitable appliance, material, or method. Blust v. Pacific Telephone Co., 48 Or. 34, 84 P. 847. But even if we should grant that the defendant owed to the plaintiff a duty of providing a vat with a hot solution capable of removing the grease from the transmission, yet the plaintiff did not testify that in the afternoon when he proceeded with his work the solution was cold and incapable of removing the grease. It is true that he had testified that the contents were cold in the morning, and that the employee in charge of the vat had told him he "could not do any washing for me that morning," but the plaintiff made no mention of the condition of the vat in the afternoon. Further, it will be observed from the testimony reviewed above that ample time had been available to the plaintiff to remove the grease from the transmission before he resumed work on this truck at 2:30 in the afternoon. A complete removal of the grease apparently was unnecessary. The use of the cloth with which the plaintiff wiped away the oil was so effective that after the accident he was able to discover a minute defect in the steel by rubbing the spot once more with his piece of cloth. We conclude that this charge of negligence could avail the plaintiff nothing.

We come now to the specification of negligence which alleges that the defendant "failed to furnish sufficient light for plaintiff to work by." The plaintiff testified that the day of his injury was foggy. The service room in which he was employed was 90 by 200 feet in size. Both of its ends consisted largely of glass. Natural light was admitted to the central part of this room by a large light well. The plaintiff testified that light which ordinarily would have reached his work bench from the light well was partially obstructed that day. He testified that artificial light was available from series of electric lights. We quote from his testimony thus: "There is a series of lights of six lights running parallel north and south. I think there is different sets of these lights, a series running from the east to the west end." He then testified to the number of lights which were burning on the day of the accident thus: "There is several series of lights through the entire length of the building and at the time of the accident there was just a few these series on, I don't know how many." He added that he had the privilege of turning on lights by the use of a switch whenever he wanted more illumination. According to his testimony, a drop light over his bench had been out of repair for several months, and an electric cord which would have enabled him to bring light from a distant connection had been in the repair department for more than a month, due to its defective condition. The plaintiff did not testify that he was unable to adequately observe the work in which he was engaged. Quite to the contrary, referring to the shaft previously mentioned, he testified: "After I had got it wiped on the rear there, I found that it was cracked in about five or six places, I forget, it was over five or six places, so I wiped it up a little bit better, I didn't have any gasoline to do so, then I called-after I got it up so it was plainly visible, the broken part, I called the foreman. ***"

He testified that after the spark had...

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23 cases
  • Skeeters v. Skeeters
    • United States
    • Oregon Supreme Court
    • February 13, 1964
    ...201 P. 188; Jodoin v. Lukenbach S. S. Co., 125 Or. 634, 268 P. 51. Coomer v. Supply Inv. Co., 128 Or. 224, 274 P. 302; Freeman v. Wentworth & Irwin, 139 Or. 1, 7 P.2d 796; Ferretti v. Southern Pac. Co., 154 Or. 97, 57 P.2d 1280; Williams v. Clemen's Forest Products, 188 Or. 572, 216 P.2d 24......
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    • Oregon Supreme Court
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    ...the jury polled is absolute. Rodgers Insurance Agency v. Andersen Machinery, 1957, 211 Or. 459, 316 P.2d 497; Freeman v. Wentworth & Irwin, Inc., 1932, 139 Or. 1, 7 P.2d 796. The state concedes that prejudicial error was committed and that a right of appeal from the judgment of conviction a......
  • Kennedy v. Wheeler
    • United States
    • Oregon Supreme Court
    • December 11, 2014
    ...that Article VII, section 5(7), requires that same nine jurors agree on “all issues determined by the verdict”: Freeman v. Wentworth & Irwin, 139 Or. 1, 15–16, 7 P.2d 796 (1932) ; Shultz v. Monterey, 232 Or. 421, 424, 375 P.2d 829 (1962) ; and Sandford v. Chev. Div. Gen. Motors, 292 Or. 590......
  • Congdon v. Berg
    • United States
    • Oregon Court of Appeals
    • April 3, 2013
    ...said that, unless waived, a party's right upon request to have the jury polled in a civil case is absolute. In Freeman v. Wentworth & Irwin, Inc., 139 Or. 1, 7 P.2d 796 (1932), the Supreme Court considered whether Oregon Code, title II, ch 3, § 2–319 (1930), which is similar to ORCP 59 G(3)......
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