Leavitt v. Stamp

• Decision Date: 12 November 1930
• Citation: 134 Or. 191,293 P. 414
• Parties: LEAVITT v. STAMP ET AL.
• Court: Oregon Supreme Court

293 P. 414

134 Or. 191

LEAVITT v. STAMP ET AL.

Supreme Court of Oregon

November 12, 1930

Department 2.

Appeal from Circuit Court, Multnomah County; C. H. McColloch, Judge.

Action by Anna B. Leavitt against Esther Stamp and another. Judgment for plaintiff, and defendants appeal.

Reversed and action dismissed.

This is an action for damages for personal injuries. The cause was tried to the court and a jury, resulting in verdict and judgment for plaintiff. Defendants appeal.

Plaintiff was employed by defendant Esther Stamp as cook and housekeeper in a sanitarium. The gist of the allegations as to negligence is that when plaintiff was taking a tray of dishes from the room of a patient to the kitchen she pushed upon the door into the kitchen and an ironing board hanging back of the door fell and struck the calf of plaintiff's right leg, injuring her; that if the ironing board had been properly fastened the same would not have fallen and struck plaintiff; that the defendants were negligent in not having the ironing board properly secured. The allegations of negligence are put in issue by the answers of defendants. The answer of defendant Esther Stamp is to the effect that plaintiff, without the knowledge or consent of defendant negligently left her duties as cook and kitchen woman and went to the second floor of the building and took from a closet on the second floor an ironing board and carried it down to the kitchen on the first floor for the purpose of using same; that after plaintiff had used the ironing board without the knowledge or consent of this defendant, she negligently and carelessly hung the ironing board behind the door leading from a hall to the kitchen, and, in falling, the ironing board struck plaintiff on the leg; that whatever injury or damage plaintiff sustained was caused by plaintiff's own negligence; that plaintiff knew and appreciated the danger and assumed whatever risk arose from the hanging of the ironing board in the place as alleged. The answer of defendant William House denies the allegations of negligence and avers, in effect, that at the time of the accident Esther Stamp was engaged in the business of conducting a sanitarium or hospital; that plaintiff was employed by Esther Stamp as cook and kitchen woman, and further avers the same as in the answer of defendant Esther Stamp. The affirmative matter of the answers was put in issue by the replies.

At the close of plaintiff's testimony defendants moved for a nonsuit on the ground of insufficient evidence, and that plaintiff assumed the risk, and for the further reason that the proof did not sustain the allegations of the complaint in that the complaint states that an ironing board hanging back of the door fell and struck the calf of plaintiff's leg and that defendants were negligent in not having it properly secured, whereas the proof shows that a third person knocked the board down, and that it later fell and struck plaintiff.

It appears from the testimony of plaintiff that she had worked at the sanitarium at different times for four or five years that she had hung this ironing board on the same hook "dozens of times"; that she was familiar with it that upon the day of the accident, after using the ironing board, as plaintiff testified: "There was a boy by the name of Harold that had to go over to Doctor House on Tuesday and Friday to get a treatment * * * he came home about one thirty, * * * the first thing I knew, he just--just pushed the door--oh, just gave it a terrible slam and came in and said, 'My tray ready, Mrs. Leavitt?' * * * He came out for his tray, and when I told him to go back to his room and I would bring his tray, * * * I took up his tray when I got it served, and carried it in to him, * * * and went in and carried the tray out, and coming out, before I started to wash the dishes, so I wouldn't make a noise rattling the dishes, I stood on my right foot and pushed the door to with my left foot, and the ironing board was standing there ready to fall, and it fell and struck the back part of my leg and knocked me down; * * *" that it was fastened on a little hook back of the door. On cross-examination, Mrs. Leavitt again mentions the fact that the boy came into the kitchen for his lunch when he came home and the door slammed, but she did not hear the ironing board fall, "but he slammed that door so hard that when the ironing board struck me I knew he had knocked it down."

It appears that the ironing board in question was four feet, six and one-half inches in length and thirteen inches wide, with one end tapering to about six inches in width, padded with a cloth in the usual manner, and with adjustable legs.

J. W. McCulloch, of Portland, for appellant Esther Stamp.

Warren E. Thomas and Frank S. Senn, both of Portland (Senn & Recken, of Portland, on the brief), for appellant William House.

Elton Watkins, of Portland, for respondent.

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

Defendants contend that the negligence alleged in the pleadings was not the proximate cause of the injury; that according to plaintiff's testimony, the ironing board would not have fallen and the accident would not have happened but for the act of a third person in knocking it off the hook; that the act of this third person was an intervening cause, and that the testimony does not show the acts of defendants were the proximate cause of the injury.

The fact that the ironing board hung at different dates on a hook behind the door, in the place from which it is alleged to have fallen, shows that under ordinary circumstances there was no danger of the ironing board falling, and that the real cause of the ironing board falling from the hook was the intervening act of the boy Harold.

"Negligence consists in: 1. A legal duty to use care; 2. A breach of that duty; 3. The absence of distinct intention to produce the precise damage, if any, which actually follows.

"With this negligence, in order to sustain a civil action, there must occur: 1. Damage to the plaintiff; 2. A natural and continuous sequence, uninterruptedly connecting the breach of duty with the damage, as cause and effect." 1 Sherman & Redfield (6 Ed.) § 5; see, also, Chambers v. Everding & Farrell, 71 Or. 521, 532, 136 P. 885, 143 P. 616.

It is the duty of the employer to use reasonable care to provide a reasonably safe place for his employees to work. It must be conceded that the place where plaintiff worked and necessarily opened the kitchen door was reasonably safe, at least until the kitchen door was slammed open by the boy and the ironing board left standing behind the door. It is essential for the plaintiff, in order for her to recover, to show prima facie that the defendants or...