Goure v. Storey

• Decision Date: 03 December 1909
• Citation: 17 Idaho 352,105 P. 794
• Parties: ARTHUR GOURE, Appellant, v. CHARLES STOREY et al., Respondents
• Court: Idaho Supreme Court

105 P. 794

17 Idaho 352

ARTHUR GOURE, Appellant, v. CHARLES STOREY et al., Respondents

Supreme Court of Idaho

December 3, 1909

MASTER AND SERVANT-ALLEGATIONS OF COMPLAINT-DEMURRER-CONTRIBUTORY NEGLIGENCE-DANGEROUS APPLIANCES-INJURIES TO EMPLOYEE-ASSUMPTION OF RISK.

1. Held, under the allegations of the complaint, that the ropes pulleys and wheelbarrow referred to in the complaint were not defective either in construction or in the manner in which they were being operated, and that whatever risk there was in operating the same was assumed by the plaintiff.

2. The rule in this state that contributory negligence is a defense to be plead and proven by the defendant does not change the rule that plaintiff cannot recover where the allegations of the complaint show that his own negligence was the proximate cause of the injury.

3. Contributory negligence may be a question of both law and fact or a question of law or of fact alone. Where it is a question of fact, it must be submitted to a jury and proven as a defense; but where it appears on the face of the complaint, it becomes one of law and may be taken advantage of by demurrer.

4. Where it appears from the allegations of the complaint that the appliances used by the workman were of simple construction and easily understood by the inexperienced, and the using of such appliances was not negligence per se on the part of the defendants, if the plaintiff continues to work therewith for a month prior to the accident, it would be contributory negligence on his part and prevent a recovery for injuries sustained.

5. Under the facts of this case, the plaintiff assumed all ordinary risks incident to the work in which he was engaged and this included all risks that were obvious and patent, as the machinery used was of the most simple kind and easily understood by one of ordinary understanding.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Fremont Wood, Judge.

Action to recover for personal injuries alleged to have been sustained by reason of defective appliances in machinery. Demurrer to the complaint sustained and judgment of dismissal entered. Affirmed.

Judgment affirmed. Costs awarded to the respondents.

Hawley Puckett & Hawley, for Appellant.

Contributory negligence is a defense only when pleaded and proven. (Adams v. Bunker Hill & S. Co., 12 Idaho 637, 89 P 624, 11 L. R. A., N. S., 844.) The master must furnish appliances which are reasonably safe and proper. This is a duty the omission or faulty compliance with which constitutes negligence. (Crawford v. Lumber Co., 12 Idaho 678, 87 P. 998; Barrow v. Lewis Lumber Co., 14 Idaho 698, 95 P. 682; Allen v. Lumber Co. (Or.), 96 P. 1109; Stephens v. Elliott, 36 Mont. 92, 92 P. 45; Burns v. Delaware etc. Co., 70 N.J.L. 745, 59 A. 220, 592, 67 L. R. A. 956; Bird v. Utica etc. Co., 2 Cal.App. 674, 84 P. 256; Galveston H. & S. A. Ry. Co. v. Smith (Tex. Civ. App.), 93 S.W. 184; Millen v. Pacific Bridge Co., 51 Ore. 538, 95 P. 199; Johnson v. Motor Shingle Co., 50 Wash. 154, 96 P. 962.)

It is also the master's duty to use improved appliances in general use. (Stewart v. Van Deventer Carpet Co., 138 N.C. 60, 50 S.E. 562; Boop v. Lumber Co., 212 Pa. 523, 61 A. 1021; Pressly v. Dover Yarn Mill, 138 N.C. 410, 51 S.E. 69.) No matter how obvious or apparent a risk may be, it is not necessarily assumed. The determinative question is as to the realization by the servant of the risk and his appreciation of the danger which arises from the defective, unsafe or unfit appliance. (Wood on Master and Servant, sec. 349; Barrows v. Lumber Co., supra; Goggin v. Co., 115 Cal. 437, 47 P. 248; Nofsinger v. Goldman, 122 Cal. 609, 55 P. 425; Lee v. Southern Pacific R. Co., 101 Cal. 118, 35 P. 572; Shoemaker v. Bryant Lumber Co., 27 Wash. 637, 68 P. 380; Tuckett v. Laundry, 30 Utah 273, 116 Am. St. 832, 84 P. 500, 4 L. R. A., N. S., 990; Millen v. P. Bridge Co., 51 Ore. 538, 95 P. 196; 6 Current Law, 570.)

Whenever a statement of facts may be looked upon from two or more standpoints, the question for determining which side of the facts is true rests solely with the jury. (Pilmer v. Traction Co., 14 Idaho 341, 125 Am. St. 161, 94 P. 432, 15 L. R. A., N. S., 254; Wheeler v. Oregon R. N. Co. 16 Idaho 375, 102 P. 347.) Whether or not the risk was assumed is ordinarily a question for the jury. (Gage v. Lumber Co., 53 Wash. 108, 101 P. 501; Millen v. P. Bridge Co., supra; 34 Cent. Dig., "Master and Servant," 1068, 1088; 10 Current Law, 758.)

"The employee is not usually in a condition to abandon his employment, for the reason that out of employment often means out of bread and meat for his family, and he will take unusual and hazardous risks to keep his place, and no employer ought to put him to the choice of peril or loss of employment." (Harrison v. D. & R. G. R. Co., 7 Utah 523, 27 P. 728.)

Martin & Martin, for Respondents.

Contributory negligence may be a question of both law and fact, or one entirely of law. Where it becomes a question of fact, of course, it would have to be submitted to a jury, and would have to be proven as a defense, but where the contributory negligence appears on the face of the complaint, it becomes one entirely of law, and can be taken advantage of by demurrer. (Wheeler v. O. R. & N. Co., 16 Idaho 375, 102 P. 347.)

What the servant may lawfully do, without negligence, the master may lawfully hire him to do, without negligence. The master cannot be bound to take greater care of the servant than the servant can of himself. It cannot be negligence on the part of the one and not on the part of the other, where both are capable of understanding the danger and both are fully informed as to all of the facts. (Rush v. Mo. P. Ry. Co., 36 Kan. 129, 12 P. 585; Riverside Iron Works Co. v. Green, 79 Kan. 588, 100 P. 482; A. T. & S. F. Ry. Co. v. Stone, 77 Kan. 642, 95 P. 1049; Kansas City M. & O. Ry. Co v. Loosley, 76 Kan. 103, 90 P. 990; Consolidated Stone Co. v. Redmon, 23 Ind.App. 319, 55 N.E. 454.)

Risks arising from the character of the instrumentalities used are assumed by the employee. (1 Labatt on Master and Servant, sec. 263.) The plaintiff assumes all ordinary risks incident to the work in which he is engaged, and this includes all risks that are obvious and patent or that ought to be open and obvious to one of ordinary understanding. (Minty v. Union P. Ry. Co., 2 Idaho 479, 21 P. 660; Drake v. Union Pacific Ry. Co., 2 Idaho 487, 21 P. 560; Zienke v. Northern P. Ry. Co., 8 Idaho 54, 66 P. 828; Brunell v. So. P. Ry. Co., 34 Ore. 256, 56 P. 129; 1 Labatt, Master and Servant, 591; Nugent v. Elevated R. Co., 64 A.D. 341, 72 N.Y.S. 67; Williams v. Delaware etc. R. Co., 116 N.Y. 628, 22 N.E. 1117; Connors v. Morton, 160 Mass. 333, 35 N.E. 860; Feely v. Cordage Co., 161 Mass. 426, 37 N.E. 368; Salem etc. Stone Co. v. Hobbs, 11 Ind.App. 27, 38 N.E. 538; Lindvall v. Wood, 44 F. 855; Bohn v. Chicago etc. Ry. Co., 106 Mo. 429, 17 S.W. 580; Atchison etc. Ry. Co. v. Schroeder, 47 Kan. 315, 27 P. 965; Olson v. McMullen, 34 Minn. 94, 24 N.W. 318.)

A servant is bound to take notice of the ordinary operation of familiar laws of gravitation and to govern himself accordingly. If he fails to do so, the risk is his own. If the instrumentalities furnished by the master for the performance of the servant's duties are defective and the servant is aware of this, though not aware of the degree of defectiveness, he is bound to use his eyes to see that which is open and apparent to any person using his eyes, and if he fails to do so, he cannot charge the consequences upon his master. (Walsh v. St. Paul & Duluth R. Co., 27 Minn. 367, 8 N.W. 145; Weeklund v. Southern Ore. Co., 20 Ore. 591, 27 P. 260; Malone v. Hawley, 46 Cal. 409; Gillaspie v. United Iron Works, 76 Kan. 70, 90 P. 760; Wichita & W. Ry. Co. v. Kennedy, 8 Kan. App. 541, 54 P. 289; Narramore v. Cleveland etc. Ry. Co., 96 F. 298, 27 C. C. A. 499, 48 L. R. A. 68; Foley v. Electric Light Co., 54 N.J.L. 411, 24 A. 488; Thayer v. St. Louis etc. R. Co., 22 Ind. 26, 85 Am. Dec. 409; Hayden v. Smithville, 29 Conn. 548; Sykes v. Packer, 99 Pa. 465; Electric Light Co. v. Murphy, 115 Ind. 566, 18 N.E. 30; Morbach v. Home Mining Co., 53 Kan. 731, 37 P. 122; Rush v. Missouri P. R. Co., 36 Kan. 129, 12 P. 582.)

The master is under no obligation to use the best appliances, but only such as are reasonably safe and suitable, and such as are ordinarily used for the purpose for which they are being used. The employer does not become an insurer of the employee against injury, nor does he covenant to supply tools and appliances that are safe, beyond any peradventure of contingency. (Hickey v. Taaffe, 105 N.Y. 26, 12 N.E 286; Forquer v. Slater Brick Co., 37 Mont. 426, 97 P. 843, and cases cited; Fritz v. Salt Lake & O. G. & E. L. Co., 18 Utah 493, 56 P. 90-92; 1 Labatt, Master and Servant, p. 51; Conway v. Hannibal etc., 24 Mo.App. 235; Burke v. Witherbee, 98 N.Y. 562; Armour v. Hahn, 111 U.S. 315, 4 S.Ct. 433, 28 L. ed. 440; Nutt v. So. P. R. Co., 25 Ore. 291, 35 P. 653; Electric Light Co. v. Murphy, 115 Ind. 566, 18 N.E. 31; Texas & P. R. Co. v. Thompson, 70 F. 944, 71 F. 531, 17 C. C. A. 524; Burke v. Witherbee, 98 N.Y. 562; Payne v. Reese, 100 Pa. 301; Powers v. New York etc. R. Co., 98 N.Y. 274; Lake Shore etc. R. Co. v. McCormick, 74 Ind. 440; Hickey v. Taaffee, 105 N.Y. 26, 12 N.E. 286; Stringham v. Hilton, 111 N.Y. 188, 18 N.E. 870, 1 L. R. A. 483; Kern v. De Castro etc. Co., 125 N.Y. 50, 25 N.E. 1071; Harley v. Buffalo Car Mfg. Co., 142 N.Y. 31, 36 N.E. 813; Leonard v. Collins, 70 N.Y. 90; Riceman v. Havemeyer, 84 N.Y. 647; Clark v. Barnes, 37 Hun, 389; White, Com. on the Law of Negligence, secs. 391-393.) Where it appears that the injury resulted from a pure accident,...