Furbeck v. I. Gevurtz & Son

• Decision Date: 31 July 1914
• Citation: 72 Or. 12,143 P. 654
• Parties: FURBECK v. I. GEVURTZ & SON ET AL. [d]
• Court: Oregon Supreme Court

143 P. 654

72 Or. 12

FURBECK v. I. GEVURTZ & SON ET AL. ^[d]

Supreme Court of Oregon

July 31, 1914

Department 1.

Appeal from Circuit Court, Multnomah County; J. W. Hamilton, Judge.

Action by R. J. Furbeck against I. Gevurtz & Son, a corporation, and others. From a judgment for plaintiff against the defendant Portland Wire & Iron Works, it appeals. Affirmed.

This action was commenced by R. J. Furbeck against the I. Gevurtz & Son, a corporation, Henrietta E. Failing, Mary F. Failing and Emily F. Carbell, the Hurley-Mason Company, a corporation, John Doe Olsen, doing business as the Olsen Ice & Coal Company, and the Portland Wire & Iron Works, a corporation, to recover damages for a personal injury. Upon motions therefor, judgments of nonsuit were granted in favor of the I. Gevurtz & Son, Henrietta E. Failing, Mary F Failing, and Emily F. Carbell, and the Hurley-Mason Company. When all the testimony had been received the court, upon its own motion, but with the consent of the plaintiff, granted a nonsuit as to S. A. Olsen, who had been sued as John Doe Olsen, to which action the counsel for the remaining defendant excepted. The cause, being submitted, resulted in a verdict and judgment for $2,000 against the Portland Wire &amp Iron Works, and it appeals.

Burnett J., dissenting.

R. W Montague, of Portland, for appellant. W. E. Farrell, of Portland, for respondent.

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

It appears from the record before us that as the heirs of Henry F. Failing, deceased, Henrietta E. Failing, Mary F. Failing, and Emily F. Carbell own at the southeast corner of the intersection of Fifth and Alder streets, Portland, Or., a tract of land which borders 100 feet on each of those streets. A contract had been entered into whereby the Hurley-Mason Company, at the time of the injury complained of, was erecting on the premises a large building which had been leased to, and when completed was to be occupied by, the I. Gevurtz & Son. Subject to a compliance with the ordinances of that city, permission had been granted the Failing estate to place material in front of the building to a line eight feet north of the curb on Alder street, and on the west to a line eight feet in the clear from the car track on Fifth street, reserving, however, a gutter space of two feet between the curb line and any material that might be placed in the streets. In executing its contract the Hurley-Mason Company put up temporary canopies over the sidewalks, extending from the curb lines of the streets to the building, to protect pedestrians from injury by falling material. The contract to construct and put up the necessary fire escapes was sublet to the Portland Wire & Iron Works. This corporation, on the day prior to the accident, sent two iron latticed platforms, each 12 feet long and 3 feet, 6 inches wide, by a drayman, who delivered them on Fifth street, within the space limited by the building permit, placing the long edges on the pavement, the upper edges inclining towards and resting against a quantity of hollow tiles, piled near the southwest corner of the building. The south end of the platforms, however, projected about two feet beyond the tiles against which they leaned. The next day the plaintiff walking north on the east side of Fifth street, observed the canopy referred to, and, disliking to pass under it, stepped into the street to go around the obstacles piled up and left therein. As he did so an acquaintance met him, and they engaged in a conversation, standing near the iron platforms. In the meantime an ice wagon drawn by two horses which were driven by a servant of S. A. Olsen was halted just south of the building mentioned to deliver ice. Having performed that service, the driver backed his horses and turned their heads to the west, and in doing so the end of the wagon tongue struck the extended ends of the platforms, causing them to fall upon the plaintiff's left leg, producing a Pott's fracture, which constitutes the injury complained of herein.

At the trial E. H. Bliss, the superintendent of the Portland Wire & Iron Works, testified on direct examination that, having been notified of the accident, he went to the building where it occurred and made some measurements, concluding his answer to an inquiry by saying, "But of course the platforms had been removed." On cross-examination the plaintiff's counsel, referring to such visit to the premises, inquired: "You went over the day of the injury?" and the witness replied, "Yes, sir; a short time after the accident. Q. Where was the iron then?" An objection to this inquiry having been sustained, the witness was asked: "Did you see the iron any place? A. I did." After this reply was given the appellant's counsel objected to the inquiry, whereupon the court said:

"That is immaterial where it was after the accident. Q. You noticed this pile of tile that was there, didn't you? A. I did. Q. Do you know about what the width of the tile was? A. Do you mean each individual tile? Q. No, sir; the pile of tile. A. I understood it was piled a couple of feet to the curb line from where the tile was piled up. Q. It was not immediately against the curb? A. No, sir; it is demanded you leave a gutter space. Q. What was that gutter space? A. I could not say definitely. It was a small space between a foot and two feet, or something of that sort." Plaintiff's counsel then observed:

"Now, your honor, I want to show that that iron could have been piled in there between that pile and these posts.

"The Court: What is the question?

"Plaintiff's Counsel: I want to ask if it was piled there.

"The Court: All right.

"Appellant's Counsel: I object.

"The Court: He may answer the question.

"Appellant's Counsel: I save an exception. Q. You saw the iron there that afternoon when you got there? A. After the accident? Q. Yes. A. Yes. Q. I want to ask you if it was not piled between the gutter and the tile? A. It was.

"Appellant's Counsel: If the court please, these questions all go in under the objection.

"The Court: Yes, sir. Save your exception. Q. Both pieces of iron had been moved, and it was piled between the tile and the upright posts on the edge of the sidewalk? A. It was piled in the gutter."

It is contended by appellant's counsel that in requiring this witness, over objection and exception, to testify that after the injury occurred the platforms were moved to another place, an error was committed. It is maintained by plaintiff's counsel, however, that, the witness having testified on direct examination that the platforms had been removed after the accident happened, it was within the limits of proper cross-examination to require him to state where they had been temporarily placed, until they could be raised to their proper position, and fastened to the outside of the building. The direct examination referred to was based upon a remark made by E. H. Bliss in response to the declaration of appellant's counsel, to state what were the conditions with respect to the delivery of the fire escape platforms at the Failing building. After complying with that request the witness incidentally observed: "But of course the platforms had been removed." This comment was probably offered as an excuse for not making a more careful measurement of the situation existing soon after the injury. The remark of the witness was not in compliance with the request for a detailed statement of the conditions existing at the building at the time of the accident, and the observation was evidently not anticipated by appellant's counsel.

The statute permits an adverse party to cross-examine a witness as to any matter stated in his direct examination or connected therewith. L. O. L. § 860. The extent or limit of the cross-examination of a witness, as a means of testing his memory, or of discovering his bias or prejudice, or of ascertaining the truth of his sworn declarations, is a matter resting largely in the court's discretion which will not be disturbed except in case of an abuse thereof. Sayres v. Allen, 25 Or. 211, 35 P. 254; State v. Reinhart, 26 Or. 466, 38 P. 822; State v. Trapp, 56 Or. 588, 109 P. 1094.

Any narration by a witness tending to explain, modify, discredit, or disprove his testimony given in chief may be demanded of him on cross-examination. Ah Doon v. Smith, 25 Or. 89, 34 P. 1093; Maxwell v. Bolles, 28 Or. 1, 41 P. 661; Kenny v. Walker, 29 Or. 41, 44 P. 501; Oregon Pottery Co. v. Kern, 30 Or. 328, 47 P. 917; Lieuallen v. Mosgrove, 37 Or. 446, 61 P. 1022.

Where, however, the proposed cross-examination of a witness relates to collateral, irrelevant or immaterial matters, the privilege should be denied. 40 Cyc. 2493.

" It is now settled by the great weight of authority as well as reason that evidence of subsequent repairs or precautions taken after the happening of the accident causing the injury," says a noted author, " is not admissible to prove antecedent negligence." 6 Thomp. Com. Law of Neg. par. 7871.

To the same effect see Skottowe v. O. S. L., etc., Ry. Co., 22 Or. 430, 30 P. 222, 16 L. R. A. 593; Ferrari v. Beaver Hill Coal Co., 54 Or. 210, 94 P. 181, 95 P. 498, 102 P 175, 1016; Marien...