Haverland v. Potlatch Lumber Co.
| Decision Date | 29 July 1921 |
| Citation | 34 Idaho 237,200 P. 129 |
| Parties | ROBERT T. HAVERLAND, Respondent, v. POTLATCH LUMBER COMPANY, a Corporation, Appellant |
| Court | Idaho Supreme Court |
MASTER AND SERVANT-ASSUMPTION OF RISK-DUTY TO WARN.
1. It is the duty of a master to warn an inexperienced servant of the ordinary risks and hazards of the work in which he is employed, unless such ordinary risks and hazards are so obvious as to be understood and appreciated by him as a person of ordinary intelligence and prudence.
2. A master is charged with knowledge of the usual and ordinary dangers and hazards to which he is exposing his employees.
3. A master is not charged with knowledge of extraordinary risks and hazards so as to impose upon him the duty to warn his servant thereof, unless shown to have been brought to the master's notice.
4. A servant cannot be said to have agreed to assume a risk of which he was ignorant, and which was not so open and apparent that he should have understood and appreciated the danger therefrom.
5. A judgment of a trial court should not be reversed for misconduct of counsel at the trial, unless the appellate court is of the opinion that such misconduct had prevailing influence upon the jury to the detriment of appellant.
APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. E. C. Steele, Judge.
Action for damages for personal injuries. Judgment for plaintiff. Affirmed.
Judgment affirmed. Costs awarded to respondent.
Cannon & Ferris and J. H. Forney, for Appellant.
Respondent assumed all the risks incident to the work in which he was engaged which were open and apparent and which were either known to him or which should have been known and appreciated by him in the exercise of ordinary care. (Minty v. Union P. Ry. Co., 2 Idaho 471, 21 P. 660, 4 L. R. A. 409; Goure v. Storey, 17 Idaho 352, 105 P. 794; Knauf v. Dover Lumber Co., 20 Idaho 773, 120 P. 157; Smith v. Potlatch Lumber Co., 22 Idaho 782, 128 P. 546; Bohn Mfg. Co. v. Erickson, 55 F. 943, 5 C. C. A 341; Lake v. Shenango Furnace Co., 160 F. 887, 88 C C. A. 69; Chicago etc. Ry. Co. v. Shalstrom, 195 F 725, 115 C. C. A. 515, 45 L. R. A., N. S., 387; Utah Co. v. Bateman, 176 F. 57; Burke v. Union Coal etc. Co., 157 F. 178, 84 C. C. A. 626; Riley v. Neptune, 181 Ind. 228, 103 N.E. 406; Anderson v. Columbia Imp. Co., 41 Wash. 83, 82 P. 1037, 2 L. R. A., N. S., 840; Props v. Washington Pulley etc. Co. , 61 Wash. 8, 111 P. 888, 45 L. R. A., N. S., 658; Brotzki v. Wisconsin Granite Co., 142 Wis. 380, 125 N.W. 916, 27 L. R. A., N. S., 982; Roberts v. Pell City Mfg. Co., 197 Ala. 106, 72 So. 341; Meyers v. Bennett Auto Supply Co., 169 Iowa 383, 151 N.W. 444.)
Respondent's testimony to the effect that he did not know that the tongs might pull out of the log is at war with the physical facts and furnishes nothing for the jury to pass upon. (Chicago Ry. v. Andrews, 130 F. 65; Artz v. Chicago etc. Ry. Co., 34 Iowa 153; Payne v. Chicago etc. Ry. Co., 136 Mo. 562, 38 S.W. 308; Chicago etc. Ry. Co. v. Pounds, 82 F. 217, 27 C. C. A. 112; Southern Ry. Co. v. Smith, 86 F. 292, 30 C. C. A. 58, 40 L. R. A. 746.)
The court erred in permitting respondent's attorneys, over appellant's objection, to argue to the jury that in fixing the amount of damage they should take into consideration what they would take to have their leg broken and go through what respondent had gone through. (Hughes v. City of Detroit, 161 Mich. 283, 137 Am. St. 504, 126 N.W. 214; Union P. Ry. Co., v. Field, 137 F. 14, 69 C. C. A. 536; McDonald v. Champion Iron etc. Co., 140 Mich. 401, 103 N.W. 829; Chicago Union Traction Co. v. Lauth, 216 Ill. 176, 74 N.E. 738, 740; Seabury v. Detroit United Ry., 194 Mich. 423, 160 N.W. 570; Morrison v. Carpenter, 179 Mich. 207, Ann. Cas. 1915D, 319, 146 N.W. 106; Wells v. Ann Arbor R. Co., 184 Mich. 1, Ann. Cas. 1917A, 1093, 150 N.W. 340; Jolman v. Alberts, 186 Mich. 643, 153 N.W. 11; Mortensen v. Bradshaw, 188 Mich. 436, 154 N.W. 46.)
Orland & Lee, for Respondent.
It was the duty of the company, knowing of Haverland's total lack of knowledge of the work he had been directed to do, to instruct him fully as to his duties, the dangers of the work and how to avoid such dangers. In view of the failure of the company to discharge its duty to Haverland in this respect, it is answerable for the injury.
One can only assume those things one knows about, those dangers that are open and apparent. (18 R. C. L. 683, sec. 172; Republic Iron & Steel Co. v. Ohler, supra.)
A judgment will not be reversed, on account of improper remarks of counsel, in argument to a jury, where the verdict is right, and it does not appear probable that the improper remarks influenced the jury, in arriving at their verdict. (Chezum v. Parker, 19 Wash. 645, 54 P. 22; Chamberlain v. Lake Shore & M. S. Ry. Co., 122 Mich. 477, 81 N.W. 339; Festner v. Omaha & S.W. R. R., 17 Neb. 280, 22 N.W. 557; Roose v. Roose, 145 Ind. 162, 44 N.E. 1; Chicago & A. R. Co. v. Pillsbury, 123 Ill. 9, 5 Am. St. 483, 14 N.E. 22; Southern Indiana Ry. Co. v. Baker, 37 Ind.App. 405, 77 N.E. 64.)
This is an action by respondent for damages for personal injuries received while employed by appellant at one of its lumber camps. The injury occurred while respondent was engaged with a crew consisting of a hooker, top-loader, engineer and fireman, in dragging logs a distance of about 300 feet from the timber to the landing place. The machine used in the work is known as the Marion loader. In the process of the work, tongs attached to a cable were fastened into the logs, and by means of the power furnished by the loader they were drawn upon the ground to the landing place. While a large log was so being moved, the tongs broke loose from the log and struck respondent, causing the injury complained of. Respondent was injured during the afternoon of the first day he worked about the Marion loader. During the forepart of the day he had assisted in loading logs on to cars by means of the loader. In the afternoon they began to draw in the logs from the timber, and respondent was requested to go out in the woods and help those engaged in the work. He testified that he told the superintendent, or foreman, that he did not know anything about it and had never seen one run before, but was told that it was all right, to go out, that it would be a good way to learn.
Two special interrogatories were submitted to the jury and answered as follows:
(1) "Was the danger of the tongs pulling out of the log open and apparent, so that a person of plaintiff's age and experience would understand and appreciate the danger therefrom?
"Answer: No."
(2) "Was the danger of the tongs pulling out of the log one of the ordinary risks of the work in which plaintiff was engaged?
"Answer: Yes."
The jury also returned a general verdict for respondent.
The negligence alleged by respondent, and relied upon, was the failure of appellant to warn respondent "that the tongs might break or slip off or become disengaged from the log while the same was being pulled or drawn to the loading or landing place."
In cases where reasonable men can reach but one conclusion as to whether or not a danger is one of the ordinary risks of the work in which a servant is employed, and whether or not it is so open and apparent that a person of ordinary intelligence and experience should understand and appreciate the risk involved in the work, such questions are properly treated and discussed as matters of law. In this case, however, these matters were properly treated as questions of fact to be determined by the jury.
By the answers to the special interrogatories, the jury determined that the danger of the tongs pulling out of the log being then drawn to the landing place was one of the ordinary risks of the work, but not so obvious as to be understood and appreciated by respondent. Under such state of facts, it was the duty of appellant to warn respondent of the ordinary risks and hazards of the work in which he was employed.
"The duty of a master to warn and instruct an inexperienced employee, the...
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