Holmberg v. Jacobs

• Decision Date: 20 July 1915
• Citation: 77 Or. 246,150 P. 284
• Parties: HOLMBERG v. JACOBS. [d]
• Court: Oregon Supreme Court

150 P. 284

77 Or. 246

HOLMBERG v. JACOBS. ^[d]

Supreme Court of Oregon

July 20, 1915

Department 1.

Appeal from Circuit Court, Multnomah County; T. J. Cleeton, Judge.

Action by Eva Holmberg against Fred A. Jacobs. From judgment for plaintiff, defendant appeals. Reversed and remanded, with directions to enter a judgment of nonsuit.

The plaintiff was in the service of the defendant as a cook from July 11 to 13, 1913. She says he furnished a gas stove to be used in her employment. She then alleges:

"That this defendant carelessly and negligently allowed the said stove to become in a defective, dilapidated, and dangerous condition, and the burners, flues, and gas pipes in the said stove to become so burned, rusted, and corroded that gas would escape and accumulate in the said stove, making the same dangerous and unsafe when any person should attempt to light and operate the said stove; that the said stove was in a dangerous and unsafe condition as aforesaid on the 13th day of July, 1913, and this defendant knew, or by the exercise of reasonable care and prudence could have known, that the said stove was in a dangerous and unsafe condition; that this plaintiff did not know of the said danger on the 13th day of July, 1913; that, in pursuance of the duties of her employment as cook for this defendant this plaintiff, on the 13th day of July, 1913, had lighted and was attempting to operate the said gas stove and to use the same for the purpose of cooking, but owing to the defective condition of the said stove, and an accumulation of gas resulting therefrom, an explosion of gas ensued causing great injury to plaintiff."

These quoted averments are traversed by the answer. The remainder of the complaint relates to the nature of her injuries and consequent damages. The court denied a motion for a nonsuit made by the defendant at the close of plaintiff's case and the trial resulted in a verdict and judgment against him from which he appeals.

W. B Shively, Jr., of Portland, for appellant. B. M. Benson, of Portland (Benson & Benson and Hamilton Johnstone, all of Portland, on the brief), for respondent.

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

The sole question presented for our consideration is whether the court erred in refusing the motion for a nonsuit. The only evidence about how the accident happened is that of the plaintiff herself. She testifies that she began her work for the defendant on July 11th. She says:

"I got there in the morning and prepared one meal, luncheon, discovered the stove, what is in a bad condition, didn't do the work, didn't cook or bake. After the meal was over, goes to Mrs. Jacobs, tells her, 'There is something the matter with the stove; it do not work satisfactory;' and she says to me, 'I have sent for the man already to come and attend to it.' The man came later--"

She states he came and examined the stove that day; returned the third day and put in new burners. Speaking of the condition of the stove before the repairs were made, she said, in substance, that the pipes and burners of the stove were rusty, dirty, and corroded; that the burners appeared to be clogged, as well as rusty and corroded. She says the repair man put in the new burners about 3 o'clock in the afternoon, but she gives no account whatever of their condition, whether good or bad. She did not use the stove after that until about 6 o'clock in the evening of the same day. Concerning the accident, she states:

"The dinner was prepared. I was going to bake the rolls. I went to make dessert at half past 6, lit the oven for to get my oven hot. Q. At what time? A. At six o'clock; let it burn there for 10 minutes or 20 minutes, opened the oven door to see if the oven was warm enough to receive my biscuits. It wasn't. I closed the door, let it stay there for some minutes longer, opened the door again, and still it was not warm. Q. That is twice. A. And then in a few minutes I put my biscuits in. They were there for 7 minutes. I opened the oven door, and a terrible explosion and

the flames leaped around me."

She stated there were two burners under the oven, and, in several places in her testimony, insisted that they were both lighted. On cross-examination she was asked:

"How many years' experience have you had with a gas stove? A. For the last 20 years. Q. You say this stove was in a very bad condition when you looked at it; you say it was rusty? A. I was there for one meal when I reported the ill condition of the stove. Q. To whom did you report the ill condition? A. To Mrs. Jacobs. Q. And what did you tell her? A. This stove will not stew or bake satisfactory and something had to be done to it. Q. Did you tell her anything else at that time? A. No."

In another part of her cross-examination she was asked:

"Just tell the jury how you lit the oven (these burners) at the time this accident happened. A. The oven was lit and had been burning for 20 minutes before the accident happened. Q. It was burning? A. For 20 minutes before the accident. Q. Are you sure it was 20 minutes? A. Yes, because I watched the clock."

In answer to a question by a juror, she said:

"Wait a minute. It burned for 10 minutes, and I opened the oven door to find out if my oven was warm enough to put in my rolls, and it was not warm enough to put in my rolls, so I closed the oven door and waited for the heat to increase, and I opened the oven door, and still it wasn't quite warm enough, and I closed it again, and I opened it again and put in my rolls, and the rolls were in for 7 minutes, and then I opened the door, and that is when the explosion happened so I got this terrible

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