O'Neal v. Meier & Frank Co.

• Decision Date: 08 February 1961
• Citation: 226 Or. 108,359 P.2d 101
• Parties: Theresa O'NEAL, Respondent, v. MEIER & FRANK COMPANY, Inc., Appellant.
• Court: Oregon Supreme Court

Page 101

359 P.2d 101

226 Or. 108

Theresa O'NEAL, Respondent, v. MEIER & FRANK COMPANY, Inc., Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted Jan. 12, 1961.

Decided Feb. 8, 1961.

Roland F. Banks, Jr., and Wayne A. Williamson, Portland, argued the cause for appellant. With them on the brief were Mautz, Souther, Spaulding, Kinsey & Williamson and Gino G. Pieretti, Portland.

Jack L. Kennedy, Portland, argued the cause for respondent. On the brief were Evans & Kennedy, Portland.

Before McALLISTER, C. J., and ROSSMAN, PERRY, GOODWIN and LUSK, JJ.

LUSK, Justice.

Plaintiff, an employee of defendant, brought this action to recover damages for personal injuries alleged to have been sustained by her while she was engaged in moving a pickle barrel in the course of her employment. In a trial by jury, she recovered a judgment for $13,500 general damages and $4,031.70 special damages, and the defendant has appealed.

Plaintiff was employed as a helper in the kitchen of the coffee shop on the tenth floor of the Meier & Frank department store on the west side of the city of Portland. She alleged in the amended complaint that her injuries were caused by the negligence of the defendant in the following particulars (omitting specifications withdrawn by the trial court):

1. In failing to provide sufficient or adequate help in said kitchen.

2. In permitting the working and storage space in said kitchen to become unnecessarily obstructed under the circumstances then and there existing.

3. In failing to adopt and promulgate and enforce reasonable rules and regulations concerning the proper handling of pickle barrels.

4. In failing to provide the plaintiff with a safe place in which to work, as aforesaid.

Defendant moved for a judgment of involuntary non-suit and a directed verdict. The motions were denied and the rulings are assigned as error.

Plaintiff claimed on the trial that the Employers' Liability Act, ORS 654.305 et seq., applied, but the court ruled otherwise and the question raised by the assignments of error is governed by the common law rules of negligence.

There was evidence of the following facts: Plaintiff was 53 years of age and in good health at the time of the accident, which occurred on August 31, 1956. She commenced to work for the defendant in June, 1953. Her general duties included taking care of the machines and washing them, preparing the food and helping with the salads and the like. At one end of the kitchen, there was a U-shaped counter partially enclosing the area within which the plaintiff usually worked. Once a week a barrel of pickles was brought into the kitchen on a dolly by a bus-boy and either placed on the floor near the closed end of the 'U' or shoved under the counter at that end. These barrels held 15 gallons of pickles and when full weighed 145 pounds. There were two bus-boys, each 19 years of age. Also on the floor at that end of the kitchen there were garbage cans which were used by the employees in connection with their duties, and because the space between the two sides of the counter was narrow, it was necessary to keep the barrels and garbage cans under the counter in order to afford the employees sufficient room in which to work.

Not only did the bus-boys leave the pickle barrels on the floor in the working area, but the 'girls' would come in from time to time to get pickles from a barrel and pull it out from under the counter and neglect to push it back. Thereupon, it became the duty of the plaintiff and sometimes of other women employed in the kitchen to push the barrel back, though the job usually fell to the plaintiff because she worked in that part of the kitchen most of the time.

Eight women were employed in the kitchen in addition to the Department Manager, Mrs. Emma Johnson.

The plaintiff testified that Mrs. Johnson had told her and the other girls to get the barrels out of the way under the counter, that she had many times before pushed back both empty and full barrels, that sometimes they would help each other push the barrels back and sometimes the others were too busy to help.

When the plaintiff came to work at 8:30 on the morning of August 31, 1956, there was a full pickle barrel out in the aisle. Later and before the accident the girl 'that started slicing pickles' had pulled out a barrel and left it out. The plaintiff put the sliced pickles in the Frigidaire and about 10:00 a. m. started pushing the barrels back. She described what occurred as follows:

'Q. Which barrel did you push back first? A. The partly empty one.

'Q. Was there anything unusual about them at all? A. Pardon?

'Q. Did anything happen with respect to your pushing back this partially empty one? A. No.

'Q. Then what did you do? A. Then I pushed the full barrel back.

'Q. How did you do that? A. I pushed it with my right foot. It was partly on the rubber mat.

'Q. Is there a rubber mat there? A. Yes.

'Q. Where does that extend to? A. Oh, it doesn't go clear to the end of the counter. It's about--it was always about six inches back, away from the counter, you know.

'Q. Away from the edge of the counter? A. Yes.

'Q. Was that barrel sitting partially on the mat? A. Yes, it was.

'Q. How did you push that barrel, Mrs. O' Neal? A. Oh, I would just take ahold on both sides of the counters, you know, so I could get some strength, and I pushed on it and pushed it back under the counter.

'Q. With what leg? A. My right one.

'Q. Did you experience any difficulty in pushing it? A. Yes, I did.

'Q. Explain, will you, please? A. Well, pushing very hard to get it off that rubber mat, and while I was pushing it I felt a pain in my leg. I just kept on pushing. So finally, I got it off the rubber mat and then worked some more and got it under the counter.'

On cross-examination the plaintiff testified that she pushed 'right in the center of the barrel.'

She further testified that if a bus-boy was right there he would help; that she had frequently asked the bus-boys to lift boxes for her and they had complied; but on this occasion the bus-boy on duty was not in the kitchen and she made no effort to get him. There were, however, three other girls in the kitchen about ten feet from her busy working on the food. She did not ask them for assistance.

Further testimony on behalf of the plaintiff tended to show that as a result of her exertion, the plaintiff sustained a fractured hip with serious secondary consequences.

It was the duty of the defendant to exercise reasonable care to provide a sufficient number of fellow employees to do the work in safety, but the defendant was not an insurer of her safety. The answer to the charge that the defendant violated this duty lies in the fact that the uncontradicted evidence shows that the defendant did furnish the plaintiff a sufficient number of fellow employees. To say nothing of the bus-boy who was not in the kitchen at the time but was on the floor nearby, there were three women employees not more than ten feet away. The women had been accustomed to helping one another in the moving of pickle barrels and there is nothing to show that if plaintiff had called on one of them for assistance she would not have gotten it. Her testimony that her fellow employees were at the time 'busy working on the food' does not permit of a contrary inference. In these circumstances, it cannot be said that plaintiff was injured because of defendant's failure to provide a sufficient number of fellow employees. Thompson v. Atchison, T. & S. F. Ry. Co., 96 Cal.App.2d 974, 217 P.2d 45; Lowden v. Bowen, 199 Okl. 180, 183 P.2d 980; White v. Owosso Sugar Co., 149 Mich. 473, 112 N.W. 1125; Harrison v. North Carolina R. Co., 194 N.C. 656, 140 S.E. 598; Western Union Telegraph Co. v. Coker, 146 Tex. 190, 204 S.W.2d 977.

Beyond that, the rule approved in Ferretti v. Southern Pacific Co., 154 Or. 97, 102, 57 P.2d 1280, that the defendant is not liable because the plaintiff knew as well as, if not better than, her employer whether the work was beyond her physical capacity, is applicable. See Burian v. Los Angeles Cafe Co., 173 Cal. 625, 161 P. 4; Prosser on Torts, 2d Ed. 310; 35 Am.Jur. 723, Master and Servant, § 299; cases cited in annotation 36 A.L.R.2d 106, § 26. As the court said in Nephew v. Whitehead, 123 Mich. 255, 81 N.W. 1083:

'If the plaintiff can recover in this case, an employer of labor would be liable whenever an accident occurred. The operation to be performed was a simple one. With the experience plaintiff must have had in handling heavy objects, he must have known as much about the danger * * * as any one.'

In view of the evidence that for three years, the plaintiff had moved pickle barrels as an employee of the defendant, sometimes with and sometimes without assistance, and always without complaint that the work was too heavy, the defendant had no reason to believe that the work was beyond the plaintiff's strength or a potential danger to her physical well-being.

Christie v. Great Northern Ry. Co., 142 Or. 321, 20 P.2d 377, cited by the plaintiff is distinguishable. The case arose under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. The plaintiff, a railroad brakeman, was engaged with the conductor, his foreman, in unloading from a boxcar a pair of engine wheels attached to an axle. He was injured when the conductor let the wheel at his end slip as the result of which the plaintiff was thrown off balance. A judgment for the plaintiff was affirmed. The defendant's contention that the plaintiff should have called for assistance was answered by stating that the plaintiff was working 'under the direction of his superior, whom it was his duty to obey, and * * * it was not the duty of a brakeman to direct the conductor how the work should be done.' 142 Or. 326, 20 P.2d 379. It was further held that the negligence of the conductor, if such it was, was not a danger which it could be said as a matter of law was reasonably to be anticipated by the...