Millen v. Pacific Bridge Co.

• Decision Date: 28 April 1908
• Citation: 95 P. 196,51 Or. 538
• Parties: MILLEN v. PACIFIC BRIDGE CO.
• Court: Oregon Supreme Court

95 P. 196

51 Or. 538

MILLEN v. PACIFIC BRIDGE CO.

Supreme Court of Oregon

April 28, 1908

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

Action by John O. Millen against the Pacific Bridge Company. From a judgment for plaintiff and an order denying a motion for a non-suit, defendant appeals. Affirmed.

This action was brought by John O. Millen, as administrator of the estate of John H. Larsen, deceased, against the Pacific Bridge Company, a corporation, to recover damages for its alleged negligence by which Larsen was so injured that he died on April 22, 1906, at Portland, Or. The defendant was engaged in the construction of an extensive sewer for the city of Portland, and had completed two sections thereof which approached each other at right angles at the intersection of East Seventh and Thompson streets. At this point the trench for the sewer was about 28 feet deep and 7 feet 3 inches in width. To construct that part of the sewer which had been completed at the time of the accident defendant, with machinery and appliances, had dug an open trench, but found this method impracticable to connect the two sections thereof at the street corner, thereby leaving an uncompleted section about 17 feet long through which a tunnel was to be dug to make the connection. It is alleged in the complaint that on April 20, 1906, Larsen was in the employ of defendant who instructed him to assist in the completion thereof, and that defendant carelessly failed and neglected to provide the tunnel with timbers or other appliances so that the same would not cave, and carelessly and negligently failed to make it a safe place for Larsen to work; that defendant well knew that the tunnel was a dangerous place in which to work, and that it was liable at any time to cave upon decedent; that Larsen did not know that the tunnel was a dangerous place in which to work, or that it was liable to cave and injure him; that while decedent was carefully performing his duties and digging the tunnel, as instructed and directed by defendant, and without any fault or negligence on his part contributing thereto, and by reason of the carelessness and negligence of defendant, the tunnel caved upon Larsen, so severely injuring him that he died soon thereafter. The answer admits the employment, injury, and death of plaintiff's intestate, but denies the alleged negligence of defendant. Two affirmative defenses are also set up, consisting, first, of contributory negligence on part of decedent; and, second, of assumption of risk by him. The substance of these defenses is that the trench for the sewer at the point where the tunnel was to begin was to be about 27 feet deep, and had been excavated to a depth of about 19 feet, leaving about 8 feet of soil to be removed at that point to reach the bottom of the excavation for the tunnel and that the earth forming the banks of the trench would stand perpendicularly and in its natural condition without lateral support, but was liable to cave, if undermined, all of which, it is alleged, plaintiff's intestate knew; that Larsen was employed with others to remove the earth in the bottom of the uncompleted trench preparatory to the construction of the tunnel, and was ordered not to dig into the face of the bank into which the tunnel was to be constructed, but in violation of his instruction, and contrary to his duty, under his employment, deceased proceeded to dig into and undermine the face of the bank causing a quantity of earth to cave, fall upon, and injure him, which is the same injury complained of; that on April 20, 1906, decedent entered into the employment of defendant with full knowledge of all the surroundings as alleged, and of all the dangers and hazards incident to said employment at the place and time, and of the work he was required to do, and assumed all the risks and hazards thereof. The reply consisted of a general denial of the averments of the answer. The cause came on for trial before a jury, and at the conclusion of plaintiff's case defendant moved for a nonsuit, which the court denied, and, after putting in its evidence, defendant requested the court to instruct the jury to return a verdict in its favor upon the ground of insufficiency of evidence to support a verdict in favor of plaintiff, which request the court denied. Upon the rendition of a verdict for plaintiff and judgment thereon defendant prosecuted this appeal, assigning as errors the denial by the court of its motion for a nonsuit and the refusal of the requested instruction.

Rufus Mallory, for appellant.

W.E. Farrell, for respondent.

SLATER, C. (after stating the facts as above).

The averment of the complaint is that plaintiff's intestate was, on April 20, 1906, in the employ of defendant. The particular services he was to perform for defendant are not stated, but it is alleged generally that he was instructed to assist in completing the sewer between East Seventh street and Thompson street. The answer admits that the relationship of master and servant existed between defendant and plaintiff's intestate on April 20, 1906, but denies the alleged instruction to assist in the completion of the sewer between those streets, and affirmatively alleges that on that day "plaintiff's intestate with other employés was engaged by defendant to remove said remaining bank of dirt to the depth of 27 feet, and said deceased and other employés engaged at the same work were directed in digging said remaining body of earth to carry the face of the embankment where said tunnel was to be located down perpendicular, and not to disturb the face of the standing bank." Hence there is an issue as to the scope of the employment, which must be determined before other matters can be considered. The bill of exceptions recites that "it is stipulated and agreed between the parties hereto that the testimony offered by the plaintiff in support of the issues on his part tending to show *** that on the 19th day of April, 1906, the deceased, J.H. Larsen, was employed by the defendant to work shoveling dirt in the ditch for the sewer at a point just east of Seventh street at Thompson street *** that plaintiff introduced witnesses who testified that the deceased and his fellow workmen had orders from Mr. O' Neil, superintendent for the defendant, who had charge of the work and the direction of the men employed, to commence digging the tunnel into the face of the embankment on the east side of Seventh street, he (O'Neil) having first indicated on the face of the embankment where the tunnel was to be dug." This evidence is undoubtedly sufficient to support the issue on plaintiff's part as to the scope of the employment, and that the injury was received by Larsen while he was in the performance of the duties of his employment in a place directed by the defendant for him to work. And upon the issue of contributory negligence this evidence is sufficient to take the case to the jury.

Defendant's main contention, however, is that plaintiff's intestate assumed all the risks incident to the employment, and all extraordinary dangers and hazards of which he had knowledge and appreciated; while plaintiff rests his case wholly upon the rule of law which requires an employer to use reasonable care and diligence to provide his employés with a reasonably safe place in which to work. There is no controversy over the rule that it is the personal and absolute duty of the master to exercise reasonable care and caution to provide his servants with a reasonably safe place to work; but it is urged by defendant that the master is not an insurer of the safety of the servant, and therefore is not bound to furnish an appliance or machinery or a place that is absolutely safe and that his duty in this regard is discharged when he exercises reasonable care and caution to that end, and the presumption is that he has discharged his duty. This may be conceded to be the law. Duntley v. Inman, 42 Or. 334, 70 P. 529, 59 L.R.A. 785. And where a servant is employed to work in a mine, quarry, tunnel, pit, trench, or other excavation the master owes the duty to use ordinary and reasonable care and diligence to make his place of work as reasonably safe as the nature of the work admits. Where, however, it is the duty of the workmen to shore up or otherwise make safe the place as the work progresses, the master's duty is fulfilled when he furnishes them with suitable materials for the purpose. 26 Cyc. 1119. The evidence discloses that Larsen, plaintiff's intestate, was employed by defendant on the 19th of April as a common laborer to shovel dirt and assist in that capacity to dig a trench for the construction of a sewer. At that time the trench on Thompson street lacked about 8 feet of being completed. On the 20th he assisted in digging out a portion of this eight feet of earth. At different places, and wherever needed, defendant had previously shored up and protected with timber the banks or walls of this trench to prevent it from falling or caving upon its employés while they were engaged at work therein. This had been done by one of its servants employed for that particular duty, and was not required to be done by those engaged to dig and shovel dirt. But no supports or timbers had been placed across the perpendicular wall or bank at the end of this open trench where the tunnel was to begin, excepting one brace which had been placed about 3 feet from the top of the bank, but slightly removed from it; the intention being to put lagging or planks behind it to hold the earth in place, but this was not done. On the next day, when Larsen returned to work, he and another employé were directed to begin digging into the face of this bank. They had been working about three hours when a quantity of earth...