Powell v. Moore

• Decision Date: 20 September 1961
• Citation: 364 P.2d 1094,73 Or.Adv.Sh. 149,228 Or. 255
• Parties: Floyd H. POWELL, Appellant, v. J. L. MOORE, dba Tigard-Sherwood Truck Service, Respondent.
• Court: Oregon Supreme Court

Page 1094

364 P.2d 1094

228 Or. 255

Floyd H. POWELL, Appellant, v. J. L. MOORE, dba Tigard-Sherwood Truck Service, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted March 16, 1961.

Reargued and Submitted July 5, 1961.

Decided Sept. 20, 1961.

Philip A. Levin, Portland, argued the cause for appellant. On the briefs were Pozzi & Wilson, Portland.

Thomas H. Tongue, Portland, argued the cause for respondent. With him on the brief were Parker & Duffy and Fred B. Duffy, Portland.

Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and LUSK, JJ.

O'CONNELL, Justice.

Plaintiff was injured as a result of falling from a loading ramp while assisting defendant's servant in loading defendant's moving van. There was a verdict for plaintiff. Defendant moved for a judgment n. o. v., or in the alternative for a new trial. The motion for a judgment n. o. v. was granted. Plaintiff appeals.

Plaintiff employed defendant to move plaintiff's household furnishings. In making arrangements for the service it was agreed that plaintiff and his son would assist in the moving operation; defendant was to supply the moving van and the driver. When the van arrived at plaintiff's home he and his son helped prepare for the loading operation. At the driver's request, they assisted him by removing the loading gangplank or ramp from under the truck while the driver prepared to back the truck to the porch. When the truck had been backed to a point near the porch, plaintiff and his son laid one end of the ramp on the porch and the other end on the rear of the truck. One end of the ramp was damaged and rough, the metal band around the beveled portion at the end of the ramp having been broken. Plaintiff and his son put the rough end on the truck to prevent scratching plaintiff's newly painted porch. Soon thereafter the driver and plaintiff's son reversed the position of the ramp so that the rough end rested upon the porch. Plaintiff objected to this, pointing out to the driver that the rough end of the ramp would scratch the surface of plaintiff's porch. Plaintiff testified that 'when he [the driver] made the change I made a squawk about the ragged end there would scratch my porch.' Heeding this complaint, the driver folded a blanket or moving pad and placed it under the end of the ramp to protect the porch. At that time one end of the ramp overlapped the full width (approximately two feet) of the tailgate of the truck and the other end extended onto the porch approximately three feet.

The driver, the plaintiff and plaintiff's son then proceeded to load the truck. After making several round trips in carrying furniture from the house to the truck, when plaintiff stepped onto the ramp the ramp slid away from the truck and plaintiff fell to the ground and received the injuries for which he now seeks to recover. In describing the incident plaintiff stated that he 'started down this gangplank and it just shot right out from under me across the porch and let me down.'

Plaintiff's son testified that the driveway leading to the front of plaintiff's house sloped downward toward the porch and that 'the truck setting up on the driveway made it quite a bit higher than the porch.' Plaintiff estimated that the slope of the ramp was between two feet and two and one half feet from the end of the tailgate to the porch. The ramp was approximately fourteen feet in length. The testimony was conflicting as to the manner in which the blanket was employed to protect the porch from damage. Plaintiff's son testified that the blanket was 'a full sized furniture blanket' and that it was 'rolled up in a small wad to protect the porch.' The driver testified that he 'placed a small moving pad underneath the end of the plank.' When asked, 'Didn't you roll this pad up kind of to put under the end of the plank?' he replied, 'No, it was just a scrap. You generally have little scraps of moving pads just more or less of a rag, and it was thin and I may have folded it once to keep the end from sticking out the foot of the board.' He further testified as follows:

'Q. Was this done at anyone's request? A. No, not that I know of. I laid it down there for the good of their property.'

There was evidence tending to show that the possibility that the ramp would slide was brought to the attention of the driver. Plaintiff's son testified as follows:

'Q. Did he make any comment concerning putting this blanket under there? A. I said something to him, and I don't recall what it was now, whether he thought that would lay there. He said, 'Yeah, it's all right there', so I don't remember what I said to him about it--that is, the exact words. It occurred to me at the time that I wanted to ask him about it.

'Q. You asked him about it, and he said it was all right? A. Yes.'

The evidence leaves no doubt that the driver was in charge of the moving operation including the adjustment of the ramp on the truck and porch and the adjustment of the blanket under the end of that ramp. As we have already indicated, he testified that the placing of the blanket under the end of the ramp was his own idea. He further testified as follows:

'Q. Did you set the plank up for the moving in and out process? A. That I couldn't be sure.

'Q. Wouldn't you generally supervise the setting up of the plank? A. That's right, if it wasn't in a proper place I would have fixed it.'

When the verdict was returned for plaintiff, defendant moved for a judgment n. o. v. or in the alternative a new trial asserting that there was no evidence of any negligence on the part of defendant and further that there was evidence that plaintiff assumed the risk or was guilty of contributory negligence.

The contention that plaintiff assumed the risk is not supported by the evidence. The evidence did not establish that plaintiff was aware of and knowingly encountered the risk involved in using the ramp. There was, however, evidence that plaintiff failed to exercise reasonable care for his own safety and that question was properly submitted to the jury assuming, of course, that there was sufficient evidence of defendant's negligence to submit the issue of his negligence to the jury. The crucial question on this appeal is whether there was such evidence.

Defendant argues that the ramp in question, and other ramps owned by defendant, had been used in defendant's business for a long period of time; that similar ramps had been used by others in the moving business; that such ramps are customarily used without hooks or fastening devices and that there was no evidence that the ramp used was other than 'reasonably safe and of a kind generally used for that purpose,' relying upon Freeman v. Wentworth & Irwin, Inc., 1932, 139 Or. 1, 11, 7 P.2d 796, 800. There was no proof of custom to establish the type of ramp generally used in the moving trade. If the equipment was inadequate to protect those using it from suffering injury, compliance with custom of course would not excuse defendant from liability for its use. Zimmerman v. W. Coast T-O S. S. Lines, 1953, 199 Or. 78, 84-85, 258 P.2d 1003; Adkins v. Barrett et al., 1952, 196 Or. 597, 606-607, 250 P.2d 387; Robertson v. Coca-Cola Bottling Co., 1952, 195 Or. 668, 680, 247 P.2d 217; Silver Falls Timber Co. v. E. & W. Lbr. Co., 1953, 149 Or. 126, 176-179, 40 P.2d 703; 2 Harper & James, Torts (1956) § 17.3 and see § 16.2, p. 902; Prosser, Torts (2nd ed. 1955) § 32, pp. 135-137; Morris, Custom and Negligence, 42 Colum.L.Rev. 1147 (1942). But even if it had been established that the ramp was without defect and adequate when properly used, the circumstances in the case at bar were such that the jury could have found that, because of the slope of the ramp, the footing upon which it was rested and other factors, the ramp, although without defect, was negligently used.

The evidence clearly established that defendant's driver was in charge of the loading operation, including the location and adjustment of the loading ramp. The jury could have found that the blanket was 'rolled up in a small wad' as plaintiff's son testified; that with such an insecure footing the ramp, sloping as it did, would be susceptible to sliding along the surface of the newly painted porch; that the driver had some warning of the possible danger by the question put to him by plaintiff's son as to 'whether he [the driver] thought that [the blanket] would lay there'; and that the failure to foresee the possibility of the ramp sliding and falling away from the truck constituted negligence.

The question of whether the evidence in a particular case is sufficient to go to the jury is often a difficult one. It is the jury's task to evaluate conduct and test it against the standard of the community. 'Generally it is for a jury to say what the reasonable man would foresee. The reasonable man represents the general level of community intelligence and perception and the jury, being a cross section of the community, should best be able to tell what that general level is.' 2 Harper & James (1956) § 16.10, p. 936. The function of the jury in determining whether the defendant has failed to conduct himself in accordance with the community standard is more specifically described by the same authors as follows:

'As a general proposition it is not essential to a party's case that he prove or otherwise show what his opponent should have done under the circumstances. It is enough to show what he did, and what the circumstances were. It is then for the jury to determine whether, in the light of their common experience in the affairs of men, they find he failed to act as a reasonable man would have acted. This implies that there was some concrete thing that he could have done or omitted to do, and that such act or such omitted precaution was reasonable and feasible, and would have been effective to prevent injury under the circumstances. But if it is within the competence of men of affairs generally to make this...