Merrill v. Missouri Bridge & Iron Co.
| Decision Date | 31 March 1914 |
| Citation | 69 Or. 585,140 P. 439 |
| Parties | MERRILL v. MISSOURI BRIDGE & IRON CO. ET AL. |
| Court | Oregon Supreme Court |
Department 1.
Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.
Action by Elizabeth F. Merrill, as administratrix of the estate of V. E. Merrill, against the Missouri Bridge & Iron Company and another. From a judgment for plaintiff for $2,500, defendants appeal. Reversed and remanded, with instructions.
A. L. Clark, of Portland (Wilbur & Spencer, of Portland on the brief), for appellant Missouri Bridge & Iron Co. R. C Nelson, of Portland (Beach, Simon & Nelson, of Portland, on the brief), for appellant Pacific Lime & Gypsum Co. J. G Arnold, of Portland, for respondent.
On September 23, 1912, the defendant the Pacific Lime & Gypsum Company was having constructed for itself a large steel building at a point about eight miles from Huntington, in this state. The place where the building was erected is called Gypsum, but at the time that the accident occurred, referred to infra, there was no town or hamlet there, nor were there any houses excepting those used in connection with the erection of the said steel building.
The Pacific Lime & Gypsum Company had let the contract for the construction of said steel building to the defendant the Missouri Bridge & Iron Company, and the last-named company was an independent contractor for the construction of said building, and said company was on September 23, 1912, engaged as an independent contractor in the construction of said building for the Pacific Lime & Gypsum Company at said place.
The decedent, V. E. Merrill, was on said 23d day of September, 1912, in the employ of the Missouri Bridge & Iron Company at Gypsum in the construction of said building. He was not in the employ of the Pacific Lime & Gypsum Company, and he was assistant to the foreman on said work. Ev. p. 42. At the time he was injured, he, with five or six other men, was engaged in rolling over a beam of steel. This beam was about 12 inches in diameter, and about 14 feet long, and it weighed about 400 pounds. A number of these beams had been unloaded by the railroad, and lay in a pile on the ground, and Merrill and his assistants were endeavoring to get one of these beams from said pile, and it became necessary to roll one of them over, and, in doing so, it caught Merrill's fingers between said beam that they were rolling over and another beam, and the backs of his fingers on one hand were mashed or bruised and the insides of them were cut. The injury was painful, and the wounds bled. At the time of this accident, the men, with Merrill, were working under him as assistant foreman.
A. P. Schloat was the foreman for the construction of said building, and, at the time of said accident, he was near where it occurred, and he decided to take Merrill to Huntington to have his hand dressed and treated by the company's physician, residing there; there being no physician nearer than Huntington. He took Merrill to a small office about 150 yards distant, and left him there, until he could obtain a conveyance to take him to the physician at Huntington. This office belonged to the Pacific Lime & Gypsum Company, and it was used by that company as an office for its bookkeeper and other officers. The Missouri Bridge & Iron Company had no right in or to said office.
The Pacific Lime & Gypsum Company kept in said office, in a small box, nailed to the wall, what is called the "first aid to the injured kit," consisting of antiseptics, bandages, adhesive plasters, absorbent cotton, peroxide of hydrogen, and other antiseptics, including an antiseptic solution contained in a bottle. All of these articles, excepting said antiseptic solution belonged to the Pacific Lime & Gypsum Company. This bottle of solution was the individual property of William A. Baker, the president of said company, and it was left there by him. These articles were kept there by said last-named company for use when any of its employés should be hurt. The Missouri Bridge & Iron Company had no interest in any of said articles, and had no right to use them. However, that company's men, when hurt, had, in a few instances, been permitted to use said appliances.
Mr. Schloat obtained permission for doing so, and took Merrill to said office. Mr. T. H. Cosford was in the office, sitting at a table, and Mr. Schloat asked him if he would dress Merrill's fingers while Schloat got a team to take Merrill to Huntington to a physician. Mr. Schloat then left the office to get a team. Mr. Cosford told Mr. Schloat that he would dress Merrill's fingers and put peroxide on them, and he did so. He obtained warm water and washed the wounds, and, while he was doing so, Merrill complained of pain, and seemed faint, and Cosford suggested to him that a drink of whisky or brandy would strengthen him. Mrs. Stella Rizor, who was at that time in the office, seconded that suggestion, and Merrill himself said that it would probably do him good. Cosford then looked up at the shelf or box from which he had obtained bandages, and seeing a plain bottle, containing a liquid of the color of whisky, took it and removed the cork, and handed it to Merrill. Merrill took several swallows, handed the bottle back to Cosford, and the latter recorked it, and placed it back on the shelf, or in the box from which he had obtained it. In a few minutes Merrill said that the stuff that he had drunk was very peculiar tasting whisky. Cosford then obtained the bottle, uncorked it, and tasted of its contents, and immediately realized that what Merrill had drunk was not whisky. Mrs. Rizor also tasted of the stuff, and decided that it was not whisky. Mrs. Rizor procured some mustard and warm water, and also some olive oil. They gave Merrill a glass of the mustard and warm water, but he drank only a part of it. They then tried to get him to drink some olive oil as an emetic, but he refused to drink it, saying that he was all right, and that he felt no ill
effect from what he had drunk. There was no one in the office when Merrill's fingers were dressed, or when said liquid was given him, or when he drank the warm water with the mustard, and refused to drink the olive oil, but Merrill, Cosford, and Mrs. Rizor.
Mr. Schloat obtained a team and vehicle, and Merrill got into it, and was taken to Dr. G. S. Standard, at Huntington, for treatment, and he died in a few minutes after reaching the doctor. The evidence of the doctor introduced by the plaintiff is to the following effect: That he saw Merrill a few minutes before his death, and was present with him until his death; that after examining the dead body, and ascertaining all possible facts relating to his death, the doctor gave it as his opinion that his death was caused by his drinking part of the contents of a bottle of unknown antiseptic of a poisonous nature; that the symptoms preceding his death were those of poisoning; and that death occurred by paralysis of the nerves of respiration, and that he did not believe that the injured hand was any part of the factor of death.
The complaint alleges that the defendants carelessly and negligently failed to furnish a sufficient number of competent servants or proper appliances for the erection and removal of said steel beams, and as a result of the carelessness and negligence of said defendants, in their failure to furnish a sufficient number of competent servants or proper appliances, a large steel beam was dropped on the hand of V. E. Merrill, thereby badly bruising and cutting said hand and fingers. The complaint alleges also that A. P. Schloat, foreman of said Missouri Bridge & Iron Company, immediately after said injury, and at the request of the defendant the Missouri Bridge & Iron Company, by and through R. P. Garrett, its vice president, and in conformity with the express direction of the Pacific Lime & Gypsum Company, took V. E. Merrill to the office of said Pacific Lime & Gypsum Company, an office in which is kept certain salves and antiseptics for the purpose of giving immediate attention to accidents, and then turned over the said V. E. Merrill to one T. H. Cosford, agent of the defendants, and expressly requested the said T. H. Cosford to dress the injured hand aforesaid of said Merrill, and to attend to and care for him. That, while the said T. H. Cosford was treating and dressing the injured hand as requested by said defendants, the said T. H. Cosford, seeing that the said Merrill was becoming weak and faint, carelessly and negligently gave to the said Merrill a poisonous solution of antiseptic liquid, used as a disinfectant, and represented and stated to the said V. E. Merrill that it was whisky, the bottle in which the solution was contained having no label indicating that it contained poison, and thereby carelessly and negligently caused the said Merrill to drink a quantity of the same. The said liquid was of a very poisonous nature, and thereby the defendants carelessly and negligently caused the death of said Merrill within about an hour after he drank the same, as aforesaid. The complaint alleges also that said T. H. Cosford was a careless and incompetent person to care for and attend to said Merrill, and that the defendants were guilty of negligence and carelessness in placing said Merrill in his care. The complaint alleges also that the defendants were guilty of negligence in not keeping a physician on or near the premises where the said Merrill was hurt, etc.
The answers of the defendants denied most of the material allegations of the complaint, and they allege, inter alia, assumption by Merrill of the risk of being hurt in handling said beams, and that said injury to his hand was the result of the negligence of Merrill and his fellow servants, etc.
The...
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