Manning v. Portland Steel Ship Bldg. Co.

• Decision Date: 14 July 1908
• Citation: 52 Or. 101,96 P. 545
• Parties: MANNING v. PORTLAND STEEL SHIP BLDG. CO.
• Court: Oregon Supreme Court

96 P. 545

52 Or. 101

MANNING v. PORTLAND STEEL SHIP BLDG. CO.

Supreme Court of Oregon

July 14, 1908

Appeal from Circuit Court, Multnomah County; A.L. Frazer, Judge.

Action by William M. Manning against the Portland Steel Ship Building Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This is a personal injury case, in which plaintiff recovered a judgment, and defendant appeals. In September, 1906, the defendant was engaged in rebuilding the steamship Geo. W Elder. Plaintiff, with another workman, was employed by it as an inexperienced laborer, in cutting off the heads of rivets by means of a steel chisel and sledge. The chisel is about 4 or 5 inches in length, and about 1 1/4 inches thick having a groove around it near the top, in which is bent a 3/8-inch iron rod. The ends of the rod form a handle or tongs, about 15 inches long, with which to hold the chisel upon the rivet while being struck. At the time it was furnished to and used by the defendant, one prong of the tongs had been broken off, leaving the remaining rod to serve as a handle; and plaintiff claims the chisel was too loose in the eye of the prong to be held firmly. The chisel, being what is called a "side-set," beveled on one side so that it can be placed close to the plate, and thus enter behind the head of the rivet, is loose in the tongs, so that it will turn to any position, and is held with the tongs by one man while being struck by the other. The head of this chisel was very much battered and frayed at the top as the result of the hammering. While the helper, Cheeseman, was holding the chisel upon a rivet and plaintiff was striking it, the latter was struck in the eye by a small piece of steel, as plaintiff maintains, chipped off the chisel by the stroke, thus causing the loss of the eye. At the close of plaintiff's testimony the defendant moved for a nonsuit which was denied by the court, and at the close of the trial plaintiff obtained verdict, and the defendant moved to set aside the verdict, and for a new trial, which was denied, and judgment was rendered for plaintiff upon the verdict.

G.W. Stapleton, for appellant.

W.W. Banks, for respondent.

EAKIN J. (after stating the facts as above).

There are but two assignments of error: (1) In denying defendant's motion for judgment of nonsuit; (2) in denying defendant's motion to set aside the verdict and grant a new trial. Only the first assignment can be considered. A motion to set aside a verdict and grant a new trial, based upon insufficiency of the evidence, is addressed to the discretion of the court; and the denial of it is not assignable as error on appeal. Crossen v. Oliver, 41 Or. 505, 69 P. 308. The consideration of the motion for nonsuit involves only the question whether there was any evidence before the jury tending to establish negligence on the part of the defendant as the cause of the injury. If there is any competent evidence upon that question, it must be submitted to the jury. Morgan's Estate, 46 Or. 233, 77 P. 608, 78 P. 1029. If the cause of the injury was the ordinary risk of the employment, namely, the ordinary liability of a steel chisel to chip when hammered in the work of cutting rivets, then plaintiff is presumed to have assumed such risk, and defendant is not liable; but if the defense is that plaintiff assumed an extraordinary risk--such as arises from the use of defective tools negligently furnished by the defendant--then plaintiff is not presumed to have assumed the risk, and the burden is upon defendant to allege and prove it. Tucker v. North Terminal Co., 41 Or. 82, 68 P. 426. The burden was on plaintiff to prove that the tools were defective, and that defendant had knowledge thereof, and that such defects were the proximate cause of the injury; and evidence thereof will make a case sufficient to be submitted to the jury on the question of negligence. And whether plaintiff also knew of the defective condition of the tools and appreciated the danger, and thus assumed the risk, were matters which must be pleaded and proved by defendant. The plaintiff is presumed to have assumed the ordinary risks but not such as defendant might have avoided by ordinary care. Conlon v. O.S.L.Ry. Co., 23 Or. 499, 32 P. 397; 20 Am. & Eng.Ency.Law, 134; Johnston v. O.S.L.Ry. Co., 23 Or. 94, 31 P. 283.

The question of the assumption of an extraordinary risk, viz., waiver of defendant's negligence, is not involved in the consideration of this motion, and it only remains for us to ascertain whether there is any evidence tending to establish the elements above named, viz., that the tools were defective, that defendant knew thereof, and that such defects were the proximate cause of the injury. Plaintiff's contention is that defendant was negligent in requiring him to work with defective tools, namely, a chisel with a battered and frayed head and broken tongs by which it was held, and that, by reason of the battered condition of the chisel, the stroke of the hammer was liable to cause it to chip off, and, by reason of the defective handle, it was impossible to hold the chisel firmly, making it liable to turn under the hammer, and thus cause the edges to chip off, which he claims were the direct cause of the injury. The evidence establishes that the chisel was battered and frayed at the top, as the result of long use, and that one arm of the handle was broken off; and there was some evidence tending to show that the chisel was too loose in the eye of the handle, that it was liable, on that account, to turn when struck with the hammer, and that it did so turn. Cheeseman, plaintiff's helper, who held the chisel, says: "I never noticed in what condition it was. I know when he would strike it the first or second blow--I think the second blow--that it turned. I was holding it in that position, and I turned like that [indicating], and I took it away from the rivet head, and put it back on the rivet.

I know when he hit it, it turned. I didn't notice just how wobbly it was." Dolan, a toolmaker, testifying as an expert, says of the defect in the tongs: "If the helper is going to hit it, he is liable to turn it a little bit and chip the edges off. It is impossible to hold it as well as if it had two handles on--he could hold it then and set it still--but if he moves it a little bit the helper coming down with the sledge is likely to chip the corners off." Bundschuh, an expert, testifying in regard to the battered condition of the head of the chisel, says: "If it is battered down, it will naturally chip off. Q. Continual use will continue to batter it? A. Yes, sir. Q. The edges constantly and continually turning over? A. Yes, sir. Q. *** And then chip off? A. Yes, sir. Q. Or else you take them and knock them off? A. Yes, sir. Q. In hammering on a tool of this kind--say, we take this small cold-chisel upon which the rosette head appears--hitting the head squarely on top, when these pieces or fragments become so battered they fall off themselves, what is the usual direction of them? A. That is hard telling; they are liable to fly in most every direction." Caples, the custodian of the tools, says that he notified the foreman of the defects in the tools that the men were kicking about them; that the chisels were battered up, and the broken tongs, both before and after the accident; that he showed him the tool, and asked him what to do with it; also that after the tools become...