O'Neill v. Odd Fellows Home of Oregon

• Decision Date: 02 July 1918
• Citation: 174 P. 148,89 Or. 382
• Parties: O'NEILL v. ODD FELLOWS HOME OF OREGON. [*]
• Court: Oregon Supreme Court

174 P. 148

89 Or. 382

O'NEILL v. ODD FELLOWS HOME OF OREGON. ^[*]

Supreme Court of Oregon

July 2, 1918

Department 2.

Appeal from Circuit Court, Multnomah County; George R. Bagley Judge.

Action by Mary E. O'Neill against the Odd Fellows Home of Oregon. Judgment for defendant, and plaintiff appeals. Affirmed.

The complaint alleges, in substance:

That the defendant is a corporation organized under the laws of the state of Oregon, and operating an establishment at East Second and Holgate streets, Portland, Or., as a home for members of the Independent Order of Odd Fellows. "That on and prior to the 9th day of November, 1914, the plaintiff was employed as a laundress in said home or establishment maintained by defendant and known as the Odd Fellows Home of Oregon. That, as a part of her duties, she was directed and required to hang washing upon lines fastened upon the porch of said home. That said lines were carelessly, recklessly and negligently stretched over a cement floor, the surface of which was hard, rough, and irregular. That said lines were carelessly, recklessly, and negligently placed by the defendant at such a high and unreasonable distance from the floor that it was necessary, in order to hang the washing upon said lines, to stand upon some portable object. That, in order to enable the plaintiff to hang washing upon said lines, this defendant, by its superintendent, on or about said 9th day of November, 1914, carelessly, recklessly, and negligently directed this plaintiff to use a small portable wooden stepladder. That, while plaintiff was descending said stepladder in the discharge of her duties, her skirt caught upon the top thereof, and on account of the dangerous and defective condition of said stepladder as hereinafter set out, became fastened thereon, and caused said ladder, on account of its dangerous and defective condition as hereinafter set out, to move or shift, by reason of which plaintiff was caused to and did fall from said ladder to the cement floor with great force and violence, and by reason thereof sustained injuries.

"That the stepladder furnished the plaintiff was a defective dangerous, and unsafe contrivance to be used for the purpose for which plaintiff was directed to and did use the same, in this: That said stepladder was light, narrow, and unstable without sufficient base, the effect of which was that it might and did shift and tip easily. That said stepladder was steep and declivitous and was not equipped with a handrail or other appliance whereby plaintiff might steady herself when using and standing upon the same. That the surface of the material composing said ladder was rough and unequal. That the edges thereof were rough, jagged, and projecting. That said stepladder had no rubber nubs, weights, or other safety devices upon the base or feet thereof to keep the same from shifting or slipping upon said concrete floor. That said stepladder was attached to no portable platform for a base thereof. That the surfaces of the material composing said ladder might and could have been made smooth and equal. That the rough, jagged, and projecting edges of said ladder might and could have been removed therefrom. That a handrail or other appliance wherewith plaintiff might steady herself in using said stepladder, rubber nubs, and movable platform thereto attached, could have been constructed and maintained in connection therewith for plaintiff's use and protection. That defendant might and could have provided plaintiff with a movable platform resting upon an even, solid base, wherewith to reach the lines. That the said lines might and could have been lowered. That any and all of the foregoing precautions might and could have been taken by the defendant to protect and safeguard the life and limb of this plaintiff without mterfering with the use of such ladder platform, or other device so to be used in the hanging of said washing, and without interfering with or depreciating the effect of the work in which plaintiff was engaged. That the work in which plaintiff was engaged involved a risk or danger to the plaintiff."

--and alleges her damages in the sum of $10,000, and $25 doctor bills.

The defendant answered denying any negligence, and for a first, further, and separate answer averred that, at the time of the injury, plaintiff selected, from a number of stepladders at said home, a stepladder about two or three feet in height, consisting of two steps and a top, and constructed in a substantial manner; that plaintiff was wearing a narrow skirt, commonly called a hobble skirt, so that it hindered the plaintiff from stepping up or down; that after plaintiff had safely hung all of said clothes upon the line, and while attempting to descend from the stepladder, the narrowness and tightness of the skirt hobbled and hampered the plaintiff in the use of her limbs in descending the ladder, and she was thereby caused to fall from the stepladder to the porch; and that plaintiff's injury, if any, was proximately caused by the wearing of such hobble skirt.

For a second and further defense, defendant avers that the injuries of plaintiff, if any, were suffered by reason of the wearing of a tight hobble skirt, and the proximate cause thereof was the contributory negligence of the plaintiff. For a third separate answer, defendant asserts that plaintiff realized and appreciated any danger or risk in attempting to step down from the ladder while wearing such hobble skirt, and assumed such risk. For a fourth defense, defendant avers that plaintiff's fall from the stepladder was purely accidental without any negligence or fault on the part of defendant. The reply put in issue all the affirmative defenses of the answer, except as alleged in plaintiff's complaint. After the jury was impaneled to try the cause, defendant by leave of court filed a fifth separate answer and defense, as follows:

"I. That during all the time hereinafter mentioned, the defendant has been a benevolent corporation, organized and existing under and by virtue of the laws of the state of Oregon, with its principal place of business at Portland, Or., and, during all the times hereinafter mentioned, has been conducting and operating a home for the old men and women belonging to the Independent Order of Odd Fellows and for the orphan children of the members of said order, and for the benefit of the members of said order, and said home is known and designated as the Odd Fellows Home of Oregon.

"II. That said Odd Fellows Home is owned, operated, and conducted without profit of any kind whatsoever, and is maintained by assessment made upon the lodges and membership of the state of Oregon, and that the home and grounds above alleged and all of the money and property whatsoever is held by the Odd Fellows Home in trust and not otherwise, for the maintenance, support, and care of the old men and women of the order, and for the maintenance, support, care, and education of the orphan children of members of the order, and for the purpose of caring for said old members and said children in sickness and furnishing them with medical attention, nurse and hospital services without any compensation therefor, and solely in a benevolent way and manner and without any profit whatsoever, and that in carrying on said work and purposes said Odd Fellows Home is a benevolent and eleemosynary corporation and is trustee only and no more, for all of the property and all of its conducts and acts for the membership of said order in general in the state, and that therefore said Odd Fellows Home, as above alleged, is not liable in damages herein, and was such corporation at all of the times hereinbefore alleged."

The fifth further and separate defense being admitted by the plaintiff, no reply thereto was made. Whereupon the court rendered judgment for the defendant upon the facts admitted by the pleadings, as for want of a reply to answer. The plaintiff appeals from such judgment.

J. O. Stearns, Jr., and Sidney J. Graham, both of Portland, for appellant. Henry S. Westbrook and Fred J. Meindl, both of Portland, for respondent.

BEAN, J. (after stating the facts as above).

This action is brought under the Employers' Liability Act (Laws of Oregon 1911, p. 16), entitled:

"An act providing for the protection and safety of persons engaged in the construction, repairing, alteration, or other work, upon buildings, bridges, viaducts, tanks, stacks and other structures, or engaged in any work upon or about electrical wires, or conductors or poles, or supports, or other electrical appliances or

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