McCollum v. O'Neil
| Decision Date | 30 December 1954 |
| Docket Number | No. 9239,9239 |
| Citation | 281 P.2d 493,128 Mont. 584 |
| Parties | Felix McCOLLUM and Emma McCollum d/b/a McCollum's Shop, Plaintiffs and Respondents, v. John E. O'NEIL et al., Co-partners, d/b/a O'Neil-Anderson Company; and the Eskestrand Brothers Construction Co. et al., Defendants and Appellants. |
| Court | Montana Supreme Court |
Hall, Alexander & Burton, Great Falls, for O'Neil et al.
Max P. Kuhr, Frederick J. Weber, Havre, for Eskestrand Bros.
Frederick J. Weber, Havre, and H. C. Hall, Great Falls, argued orally for appellants.
James T. Harrison, Malta, John Marriott Kline, Glasgow, M. J. Doepker, Butte, for respondents.
John Marriott Kline, Glasgow, and M. J. Doepker, Butte, argued orally for respondents.
On September 7, 1950, plaintiffs were operating a ladies' ready-to-wear store in the Arcade Building at Malta.
Defendants were at that time building contractors jointly engaged in remodeling the front of the Arcade Building under a contract with the owner, Mrs. Larcombe.
On September 7th steam escaped from the pipes of the Arcade Building, causing damages to plaintiffs' stock in trade.
This action was brought to recover the damages thus caused.
The amended complaint alleges that defendants in the prosecution of their work negligently and carelessly disconnected the radiators in plaintiffs' place of business and negligently left the pipes leading from the furnace of the heating plant open so that steam could escape into the store room of plaintiffs; that they negligently and carelessly suffered and permitted the pipes to be open when they knew that the heating plant was in operation and in use for the heating of plaintiffs' place of business; that as the proximate result of the negligent failure of defendants is enclose, lock or otherwise protect and secure the pipes so that steam could not escape, the steam passed or flowed from the furnace in the building to and through the steam pipes and into the premises used and occupied by plaintiffs and escaped from the uncapped pipes filling the premises with large quantities of steam which caused the damages complained of.
These allegations were put in issue by the answers and in addition the answer of O'Neil-Anderson Company set up the plea of contributory negligence. The reply put in issue the affirmative allegations of the answer. The cause was tried to a jury resulting in a verdict in favor of plaintiffs. From the judgment entered on the verdict defendants have appealed.
The first question presented by appellants is whether there was sufficient evidence to make a case for the jury and to justify the verdict.
As noted from the pleadings, the issue so far as liability is concerned depends upon what was done when the radiator was disconnected.
Gaylord Robertson was the person who disconnected the radiator in question. There was a dispute as to just when this was done. Plaintiffs alleged and offered proof that it was done on September 1st. Defendants claim it was done on August 22nd.
Robertson testified by deposition that he closed the valve on the pipe leading to the radiator as he disconnected the pipe from the radiator. He testified:
* * *
'
'
Mr. Robertson's deposition was taken by stipulation of the parties. Plaintiffs offered and were permitted to read a part of the deposition and defendants' counsel hereupon offered the entire deposition.
Defendants contend that the evidence falls short of the requisite proof to meet the requirments of the court's instruction No. 8, reading:
'You are instructed that before you may find a verdict in favor of the plaintiffs and against the defendants, you must find from a preponderance of the evidence,
'First: That such defendants, by and through their servants and employees, negligently left the pipes leading from the furnace of the heating plant open, and negligently and carelessly failed to cap or otherwise close the pipes at the places where the radiators were disconnected;
'Second: That at said times said defendants knew or in the exercise of ordinary care should have known that the heating plant was in operation attached to the furnace, and was then in use for the heating of plaintiffs' place of business; and,
'Third: That the negligent acts of said defendants were the proximate cause of the damage to plaintiffs' property, if any.
'Should plaintiffs fail to prove all of the above matters your verdict must be for the defendants.'
They contend that the proof instead of showing that the defendants had left the pipes leading from the furnace of the heating plant open, affirmatively shows that they were closed.
The court was right in submitting this issue to the jury. The fact is undisputed that the pipe was not capped. It is also undisputed that the steam which caused the damage came from the open or partially open pipe.
The fact that Mr. Robertson thought the valve was completely closed is beside the point. He could not know that it would completely shut off the steam unless there was steam in the pipe at the time he made the disconnection. Aside from this there was evidence that the person who closed the valve after the damage had been done turned the valve 'down as far as it seemed like he could but there was still lost of steam escaping and I got on it with both hands and turned with all I had to turn it to get it shut off to where it didn't leak through.'
There was evidence also that the valve was wide open when the witness first started to turn it down.
There was evidence also that there was an absolutely safe method of preventing the escape of steam by screwing a cap on the end of the pipe, which concededly was not doen on the pipe from which the radiator in question had been disconnected, though caps had been used on the pipes leading to radiators in the cafe and bar which had been disconnected.
The evidence shows that by removing the valve, a cap could have been placed on the end of the pipe coming from the furnace and by so doing the steam could have been shut off absolutely. The only reason given for not doing this was that it was unnecessary work.
Under the circumstances here shown the inferences to be drawn from the evidence as to whether defendants used reasonable care in preventing steam from escaping from the pipe, are open to different conclusions by reasonable men and hence the issue was properly submitted to the jury. Maki v. Murray Hospital, 91 Mont. 251, 7 P.2d 228; Puutio v. Roman, 76 Mont. 105, 245 P. 523; First National Bank of Lewistown v. Wilson, 57 Mont. 384, 188 P. 371.
The fact that there was evidence that closing the valves before disconnecting a radiator constituted standard plumbing practice, where the disconnection was to be temporary is immaterial since the standard is 'not what men ordinarily do under like circumstances, but what reasonably prudent and careful men, having regard for the rights and safety of others, do under like circumstances.' Thompson on Negligence, Vol. 4, Sec. 3770, quoted with approval in Kinsel v. North Butte Min. Co., 44 Mont. 445, 470, 120 P. 797, 805. 'Custom never exonerates from the imputation of negligence.' Conway v. Monidah Trust, 52 Mont. 244, 157 P. 178, 180; Surman v. Cruse, 57 Mont. 253, 187 P. 890. Likewise, it would be for the jury to say whether several days, as here, would constitute a temporary disconnection, particularly at a place frequented by the general public, as here.
It is contended that plaintiffs are bound by the testimony of Robertson because they offered his deposition in evidence.
Reliance is placed on R.C.M.1947, Sec. 93-1801-12. Even though we consider the deposition as evidence of plaintiffs, the result contended for does not follow.
Plaintiffs are not bound by the evidence in the sense that they may not offer evidence that conflicts with it and have all the evidence considered by the jury.
We declared the applicable rule in Hardie v. Peterson, 86 Mont. 150, 282 P. 494, 497, where we said: And continuing we said: 'The rule was stated in the Olds Case, above, which is typical of that announced in the others, as follows: 'We remember also that it is a binding principle that the plaintiff is entitled to the benefit of whatever his testimony tends to prove, although his witnesses may contradict each other, and that, if any reasonable construction of the evidence on his behalf, or any part thereof, shall fairly tend to show that he is entitled to recover, it is the duty of the court to submit the question to the jury.'
'Hence, if according to the credible testimony of any of plaintiff's witnesses, he has made out a cause of action, the case should have been...
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