Pond v. Jantzen Knitting Mills
| Decision Date | 25 February 1948 |
| Citation | 190 P.2d 141,183 Or. 255 |
| Parties | POND <I>v.</I> JANTZEN KNITTING MILLS |
| Court | Oregon Supreme Court |
4. Evidence established that employee's injury when she tripped in passageway in factory while on her way to "check out" was caused by negligence of employer, which had rejected Workmen's Compensation Act, in allowing passageway to be cluttered with obstacles constituting a hazard to use thereof by employees and that employer had actual or constructive knowledge of dangerous condition of passageway, so as to be liable for employee's injuries. O.C.L.A. § 102-1713.
Damages — Testimony supported finding
5. In employee's action against employer, which had rejected Workmen's Compensation Act, for injury to knee when she tripped in passageway in employer's factory, medical testimony supported finding that employee's knee disability was due to her fall and that it was not to be attributed to her varicose veins or arthritis. O.C.L.A. § 102-1713.
Workmen's compensation — Agreement — Complete performance
6. Where compensation agreement entered into between injured employee and liability insurance carrier of employer, which had rejected Workmen's Compensation Act, provided that employee would release employer from liability for her injury on condition that employer would compensate her for injuries sustained as provided in Workmen's Compensation Act, employer could not rely on the agreement as defense in employee's personal injury action, in absence of showing of complete performance thereof. O.C.L.A. § 102-1713.
Release — Conditional release
7. A release granted on condition has no force if condition is not performed. Appeal and error — Photograph — Not admitted — Sympathy
8. In employee's action against employer, which had rejected Workmen's Compensation Act, for injury to her knee when she tripped in passageway in factory, refusal to admit in evidence, photograph of knee and leg of plaintiff taken by physician, who identified picture as true representation of condition of plaintiff's knee and leg, was not prejudicial to defendant, where photograph, if it had been received, would in all probability only have tended to arouse sympathy for plaintiff. O.C.L.A. § 102-1713.
Appeal and error — Photographs — Evidence — Discretion
9. Admitting or refusing to admit photographs in evidence is largely a matter of discretion which will not be disturbed unless abused.
Workmen's compensation — Agreement — Instruction — Fraud
10. In employee's action against employer, which had rejected Workmen's Compensation Act, for injury when she tripped in passageway in factory, defendant's requested instruction that compensation agreement entered into between plaintiff and defendant's liability insurance carrier was of a type which could be lawfully entered into was properly denied as misleading, in view of plaintiff's claim that agreement had been entered into by reason of fraudulent representation. O.C.L.A. § 102-1713.
Trial — No motion for retrial — Improper argument — Objection waived
11. Where no motion for mistrial was made on ground of improper argument of plaintiff's counsel tending to arouse prejudice of jury, and only objection to argument was made after argument had been concluded, during recess and in chamber, objection was waived.
See note, 118 A.L.R. 425
35 Am. Jur. 613
71 C.J., Workmen's Compensation Acts § 1525
Appeal from Circuit Court, Multnomah County.
James Arthur Powers, of Portland, argued the cause for appellant. With him on the brief was Thomas H. Tongue, III, of Portland.
George Black argued the cause for respondent. On the brief were Black & Kendall and Platt & Platt, of Portland.
Before ROSSMAN, Chief Justice, and LUSK, BELT, BRAND and HAY, Justices.
Action by Ada Pond against Jantzen Knitting Mills for personal injuries. From a judgment for plaintiff for $18,500, the defendant appeals.
AFFIRMED.
This is an action to recover damages for personal injuries. From a judgment in favor of the plaintiff in the sum of $18,500.00, the defendant appeals.
1, 2. The motions for nonsuit and a directed verdict require the statement of the evidence in the light most favorable to the plaintiff. It is not for us to weigh the evidence but to determine whether there is any substantial evidence to support the judgment. Notwithstanding these well established principles, the brief of appellant is replete with argument concerning questions on which there is a conflict in the evidence. There are twenty-four assignments of error covering almost every conceivable question that could arise in a personal injury action. We will endeavor to select those assignments for consideration upon which we think the appellant seriously relies and which we deem to have some merit.
The facts out of which this action arose, so far as are material herein, may thus be briefly stated: The plaintiff, a woman 57 years of age, was employed by the defendant company as an inspector of bathing suits and sweaters. It is claimed by her that while she was proceeding along a passageway of defendant's factory — which was obstructed by miscellaneous carts and boxes of equipment — she tripped on some strips and loops of cloth material on the floor and fell, injuring her left knee. She was going to "check out" when the accident occurred, and the lights in the large factory room were dim. Plaintiff says that as she went around the obstructions in the passageway, she came suddenly upon the waste material on the floor and when she stepped thereon, she tripped and lost her balance and fell to the floor, striking her left knee.
Defendant was charged with negligence in failing to provide plaintiff a reasonably safe place in which to work. More specifically, defendant was charged with negligence in allowing this passage way "to be cluttered with obstacles and materials constituting a hazard to the use thereof by defendant's employees and particularly to this plaintiff." Plaintiff also alleged that defendant failed to keep the passageway properly lighted.
3, 4. It is fundamental that it was the duty of the defendant company to provide plaintiff a reasonably safe place in which to work. Defendant, having rejected the Workmen's Compensation Act, is deprived of the common law defenses of assumption of risk, contributory negligence, and fellow-servant. § 102-1713, O.C.L.A. There is evidence that the passage way was in such condition as to constitute a hazard to employees obliged to use it. It is urged by defendant, however, that there is no evidence to establish that it had actual or constructive knowledge of the alleged dangerous condition of the hallway of its plant. Citing in support thereof Waller v. Northern Pacific Terminal Co. of Oregon, 178 Or. 274, 302, 166 P. (2d) 488; Starberg v. Olbekson, 169 Or. 369, 376, 129 P. (2d) 62; Lee v. Meier & Frank Co., 166 Or. 600, 114 P. (2d) 136; DeMars v. Heathman, 132 Or. 609, 616, 286 P. 144. The general rule invoked by defendant has no application to the factual situation involved in this case. Here, the evidence tends to show that the dangerous condition of the floor was created by the act of the defendant. In the cases above cited, the evidence therein does not so show. Of course, if the defendant, through one of its employees, put the waste material on the floor of the hallway, the defendant employer had knowledge thereof. Since this factory room was occupied and used exclusively by employees, it is, indeed, a reasonable deduction that the alleged condition of the passageway resulted from the act of the defendant. We do not have under consideration a case wherein a person has been injured by stepping on some foreign substance such as on the floor of a lobby of a hotel or of a bank used by the public in general. Under such circumstances a reasonable inference could be drawn from the evidence that the foreign substance was put on the floor by some person other than an employe. Hence, there could be no liability unless the employer had actual or constructive knowledge of the dangerous condition of the floor.
Waller v. Northern Pacific Terminal Co. of Oregon, supra, clearly recognized the distinction to which attention has been directed. In that case the plaintiff brakeman brought an action to recover damages for personal injuries against the defendant company on account of its alleged negligence in failing to keep and maintain in a reasonably safe condition a path which he was obliged to use in his work. It was claimed by him that the defendant company caused and permitted certain debris and sticks to be on the path running parallel to the tracks. The court reversed the judgment in favor of the plaintiff and pointed out that there was no evidence that the sticks and debris were put on such premises by the defendant. Switching operations were conducted by various railroad companies using the yards. There is no evidence that the defendant knew or ought to have known of the presence of the sticks and debris in question. The court, in reversing the judgment, thus announced the well established rule:
"The rule is firmly established that where plaintiff slips upon an object upon the premises of the defendant, plaintiff must, in order to establish liability, show that the defendant or his agent put the dangerous object there, or that they knew or by the exercise of reasonable diligence...
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