Maw v. Coast Lumber Co.

• Decision Date: 24 February 1911
• Citation: 114 P. 9,19 Idaho 396
• Parties: CHARLES N. MAW, Respondent, v. COAST LUMBER COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

114 P. 9

19 Idaho 396

CHARLES N. MAW, Respondent, v. COAST LUMBER COMPANY, a Corporation, Appellant

Supreme Court of Idaho

February 24, 1911

APPEAL AND ERROR - QUESTIONS REVIEWABLE - PERSONAL INJURY - DEFECTIVE MACHINERY - ASSUMPTION OF RISK - MASTER AND SERVANT - NEGLIGENCE - QUESTIONS OF FACT - SUFFICIENCY OF EVIDENCE-EXCESSIVE DAMAGES.

(Syllabus by the reporter.)

1. An objection that the complaint does not state facts sufficient to constitute a cause of action cannot be reviewed upon an appeal from an order denying a motion for a new trial. (Citing Naylor v. Lewiston etc. Ry. Co., 14 Idaho 789, 96 P 573.)

2 Secs. 4225 and 4226, Rev. Codes, empower the district court to afford relief to a defendant who, during the trial or at the conclusion thereof, contends that he has been misled by the allegations of the complaint, and such relief should be sought in that forum. If the lower court denies such relief an exception may be duly saved, and the defendant will then be in a position to present the matter on appeal. The question cannot be raised for the first time on appeal. (Citing West v. Johnson, 15 Idaho 681, 99 P. 709, and Crowley v. Croesus Gold etc. Co., 12 Idaho 530, 86 P. 536.)

3. A servant or employee, in accepting a service or employment assumes the risk incident to such employment only when the employer furnishes a reasonably safe place and reasonably safe machinery and appliances with which to perform his work. A risk which arises from the use of defective machinery or appliances is not a risk incident to the employment.

4. Where, in an action for damages for personal injury alleged to have been caused by defective machinery, it appears that the machinery in question was different in its general construction from machinery of a similar character installed in defendant's factory, that it would require greater care in its operation, attended with greater hazard, that it was unsafe in operation, and that this was known to the defendant, or could have been ascertained by the use of ordinary care on the part of the defendant company or its agents, the plea that plaintiff had knowledge of the danger and assumed the risk incident to the employment is not a valid defense.

5. An employee whose business it is to operate a particular piece of machinery is held to a stricter rule with reference to the assump- tion of risk than one whose duties do not require him to operate such machine, and the latter employee is not required to familiarize himself with such machinery or its appliances, or investigate its condition but has a right to assume that his safety has been reasonably provided for.

6. In an action for damages for personal injury occasioned by the use of machinery alleged to have been defective, the questions as to whether such machinery when installed was defective, as to whether when in operation it endangered the safety of the employee of the defendant company, and whether such company or its officers had knowledge of such defects in the machinery and the danger incident to its operation, or whether the plaintiff must have known of such defects, are all questions of fact for the jury to determine, and are properly submitted to the jury.

7. In an action for damages for personal injury arising from the operation of machinery, if different conclusions might reasonably be arrived at as to whether there was negligence on the part of the defendant company, then the question is one of fact, to be submitted to the jury under proper instructions, but if only one conclusion is deducible from the facts, the question becomes purely a question of law. (Wheeler v. O. R. & N. Co., 16 Idaho 375, 102 P. 347, approved and followed.)

8. The verdict of the jury will not be set aside on the ground of excessive damages being awarded in a personal injury case, where it does not appear that the jury have acted under any improper influence, bias or prejudice, or mistaken the rule of law by which damages are to be regulated. In such cases the court should consider whether the verdict is fair and reasonable under all the circumstances, and it will be so presumed unless the contrary is shown. (Maloney v. Winston Bros. Co., 18 Idaho 740, 111 P. 1080, approved and followed.)

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

Action for damages for personal injury. Judgment for plaintiff and defendant appealed. Affirmed.

Judgment of the lower court affirmed. Costs awarded to the respondent. Petition for rehearing denied.

Alfred A. Fraser and Charles M. Kahn, for Appellant.

The evidence of the plaintiff himself conclusively establishes the fact that he has assumed whatever risk, if any, there was, by reason of the defects and negligence alleged in the plaintiff's complaint, for the reason that such defects were open and obvious, and were known to the plaintiff during all the time he was employed by the defendant company. (St. Louis Cordage Co. v. Miller, 126 F. 495, 61 C. C. A. 477, 63 L. R. A. 551; Labatt, Master and Servant, secs. 259, 274, 388; Wagner v. Chemical Co., 147 Pa. 475, 30 Am. St. 745, 23 A. 772; Miss. Logging Co. v. Schneider, 74 F. 195, 20 C. C. A. 390; Minty v. Union P. Ry. Co., 2 Idaho 471, (437), 21 P. 660, 4 L. R. A. 409; Harvey v. Alturas Gold Co., 3 Idaho 510, 31 P. 819; Drake v. U. P. R. Co., 2 Idaho 487, (453), 21 P. 560; Zienke v. N. P. R. Co., 8 Idaho 54, 66 P. 828; Goure v. Storey, 17 Idaho 352, 105 P. 794.)

The servant assumes all the ordinary risks and dangers of the employment upon which he enters and in which he continues, including those resulting from the negligence of his master which are known to him and would have been appreciated by a person of ordinary prudence and care in his situation. Nor can a servant be heard to say that he did not appreciate or realize the danger when the defect or negligence was obvious and the dangers would have been apparent to an ordinarily prudent person of his intelligence in his situation. (Glenmont Lbr. Co. v. Roy, 126 F. 524, 61 C. C. A. 506; Lamson v. Am. Axe & Tool Co., 177 Mass. 144, 83 Am. St. 267, 58 N.E. 585; Sullivan v. Electrical Co., 178 Mass. 35, 59 N.E. 645; C. M. & St. P. Ry. Co. v. Benton, 132 F. 460, 65 C. C. A. 660; Choctaw etc. R. Co. v. McDade, 191 U.S. 64, 24 S.Ct. 24, 48 L.Ed. 96; Chicago etc. Ry. Co. v. Crotty, 141 F. 913, 73 C. C. A. 147, 4 L. R. A., N. S., 832; Burke v. Union Coal & Coke Co., 157 F. 178, 84 C. C. A. 626; Fritz v. Salt Lake etc. Gas etc. Co., 18 Utah 493, 56 P. 90.)

The fact that he failed to take notice of this defect is no excuse. (Green River etc. Co. v. Phaup, 137 Ky. 34, 121 S.W. 651; Vandalia R. Co. v. Adams, 43 Ind.App. 664, 88 N.E. 353; Roth v. N. P. Lbr. Co., 18 Ore. 205, 22 P. 842; Brown v. Tabor Mill Co., 22 Wash. 317, 60 P. 1126; Del. Engine Works v. Nuttall, 119 Pa. 149, 13 A. 65; Detroit etc. Co. v. Grable, 94 F. 73, 36 C. C. A. 94.)

Where there is no direct evidence as to the manner in which the accident causing the injury happened, and, from the nature of the accident, it is as possible that it was attributable to a cause for which the defendant was not liable as to a defect in the appliances, there can be no recovery. (The Columbia, 106 F. 745; O'Connor v. Ill. Cent. R. Co., 83 Iowa 105, 48 N.W. 1002; Rutledge v. Mo. P. R. Co., 110 Mo. 312, 19 S.W. 38; Hunter v. N.Y. etc. R. Co., 116 N.Y. 615, 23 N.E. 9, 6 L. R. A. 246; Beyersdorf v. Cream City Sash etc. Co., 109 Wis. 456, 84 N.W. 860; Musbach v. Wis. Chair Co., 108 Wis. 57, 84 N.W. 36; Schultz v. Chicago etc. R. Co., 116 Wis. 31, 92 N.W. 377.)

If the accident might have resulted from more than one cause, for one of which the master is liable and for the other he is not liable, it is necessary for the plaintiff to prove, in the first instance, that the injury arose from the cause for which the master is liable, for it is not the province of the court or jury to speculate or guess from which cause the accident happened. (Patton v. Texas etc. R. Co., 179 U.S. 658, 21 S.Ct. 275, 45 L.Ed. 361; O'Donnell v. Am. Mfg. Co., 112 La. 720, 36 So. 661; Walker v. Louis-Werner Saw Mill Co., 76 Ark. 436, 88 S.W. 988; Davis v. Mercer Lumber Co., 164 Ind. 413, 73 N.E. 899; Trigg v. Ozark Land & Lumber Co., 187 Mo. 227, 86 S.W. 222.)

Where a recovery is sought on the ground of a defect in the machinery, and it appears that the decedent was acquainted with his surroundings, plaintiff must show that the decedent had no knowledge of the defects. (Clark County Co. v. Wright, 16 Ind.App. 630, 45 N.E. 817.)

We contend that the verdict in this case is excessive. (Maloney v. Winston Bro. Co., 18 Idaho 740, 111 P. 1080; Walsh v. Winston Bro. Co., 18 Idaho 768, 111 P. 1090.)

N. M. Ruick and T. F. Halveston, for Respondent.

Sufficiency of complaint cannot be inquired into on appeal from order denying a new trial. (Naylor v. Ry. Co., 14 Idaho 789, 96 P. 573.)

"A master is guilty of a breach of duty if he fails to see that the instrumentalities supplied are of such a character and maintained in such a condition that his servants will be able to carry on their work without the risk of injury as long as they exercise proper care in the use of those instrumentalities." (Labatt, M. & S., secs. 30, 31.)

A servant is prima facie not chargeable with an assumption of extraordinary risks--risks, that is to say, which may be obviated by the exercise of reasonable care on the master's part. (Labatt, M. & S., sec. 270; Hough v. Texas & P. R. Co., 100 U.S. 213, 25 L.Ed. 612.)

"A master cannot plead assumed risk where the ground of the plea is knowledge or means of knowledge of the defect complained of, where the master has knowledge of the defect or the superior of the employee intrusted with the duty of repairing the defects...