Ritter v. Beals

• Decision Date: 25 January 1961
• Citation: 358 P.2d 1080,225 Or. 504
• Parties: Carrie H. RITTER, Appellant and Cross-Respondent, v. Arthur G. BEALS, Thomas Bailey, Charles Ross, Mig. Ackley, John Gardner and Dr. Howard Kaliher, Respondents and Cross-Appellants.
• Court: Oregon Supreme Court

Page 1080

358 P.2d 1080

225 Or. 504

Carrie H. RITTER, Appellant and Cross-Respondent, v. Arthur G. BEALS, Thomas Bailey, Charles Ross, Mig. Ackley John Gardner and Dr. Howard Kaliher, Respondents and Cross-Appellants.

Supreme Court of Oregon, In Banc.

Argued before Department 1 and Submitted Sept. 6, 1960.

Reargued Jan. 11, 1961.

Decided Jan. 25, 1961.

Philip A. Levin, Portland, argued the cause for appellant and cross-respondent. On the appellant's brief were Peterson, Pozzi & Lent, and on the reply brief were Pozzi & Wilson, Portland.

Bruce Spaulding, Portland, argued the cause for respondents and cross-appellants. On the brief were Mautz, Souther, Spaulding, Kinsey & Williamson, and James H. Bruce, Portland.

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

GOODWIN, Justice.

This is an appeal by the plaintiff, Carrie Ritter, from a judgment n. o. v. in favor of the defendants in an action for damages resulting from an accident. The defendants have cross-appealed, assigning error to certain rulings made during the trial.

The jury having found for the plaintiff, it is necessary first to review the record in order to determine whether the court erred in entering judgment n. o. v.

Mrs. Ritter was injured on May 27, 1956, while in the course of her employment as a practical nurse and housekeeper for the defendant Beals, who was an 84-year-old invalid confined to a wheel chair.

In 1954, Beals conveyed all his property, including his home, in trust to the trustees of the Tillamook County Young Men's Christian Association. Except for Beals, the other named defendants are trustees under the trust instrument, which was received in evidence. The trust requires the trustees to manage the property and to provide for the needs of Beals for life with the remainder to go to the objects of the trust.

At the time of her employment, Mrs. Ritter was interviewed by Beals and was selected by him for the job. The defendant trustees paid her salary and participated to a limited extent in supervising her work. The defendant Kaliher, one of the trustees, was also the personal physician of the defendant Beals and later of Mrs. Ritter.

Dr. Kaliher, acting either in his capacity as a physician or as a trustee, the evidence does not distinguish which, told Mrs. Ritter to try to get Beals outside for fresh air and sunshine if she could. This was a difficult task for Mrs. Ritter, who, according to the evidence, was 67 years of age, obese, and was under treatment for diabetes. Beals weighed about 185 pounds. He was unable to walk. Accordingly, Mrs. Ritter suggested to the trustees that a ramp be built in order that Beals could be moved conveniently by wheel chair from the house to the sidewalk.

The ramp was built by the defendant Gardner, who ordered the materials and had them paid for from the trust funds. He was assisted to some small degree by a carpenter who was not made a party. Gardner is the secretary of the trustees. There is no evidence that Beals personally supervised the building of the ramp. Neither is there evidence that Mrs. Ritter supervised the construction. There is no doubt that the ramp was built for the benefit of Beals by one of the trustees in the exercise of the obligations of the trust.

When completed, the ramp consisted of board decking nailed to a frame fourteen feet long running from the top of the back steps to the ground. The top step was three feet above the ground. The ramp had a grade of about 4.6 feet of horizontal run for each foot of fall.

Mrs. Ritter testified that when the ramp was finished she was afraid to wheel her patient down the ramp because she thought it was too steep. She said that she wanted to test it before subjecting Beals to what she thought was an unsafe condition. The defendant Gardner, who was present when Mrs. Ritter expressed her reservations concerning the ramp, volunteered to act as a test passenger in the wheel chair. After Gardner got into the chair, the plaintiff turned it around in order to back down the ramp with it as she had been taught to do some years earlier in her nurse's training. After taking only a step or two, she lost control of the wheel chair and of her footing and fell off the ramp, sustaining the injuries which gave rise to this action. Gardner was able to avoid falling by grasping the end of a handrail on the back porch stairs, but there was no handrail on the ramp.

The complaint charged the defendants, and each of them, with negligence in certain particulars:

(1) Failure to provide a safe place to work, and specifically failure to provide hand or guard rails;

(2) Failure to employ sufficient workmen to assist the plaintiff; and

(3) Failure to make the ramp long enough for a gradual ascent or descent.

The defendants denied negligence, and alleged three affirmative defenses: that the plaintiff herself was contributorily negligent; that Mrs. Ritter assumed the risk of the obvious and known hazards in using the ramp; and that the construction of the ramp was her own idea and that the ramp was built under her direction and control. The reply was a general denial.

On the issues thus made up, the cause proceeded to trial. Mrs. Ritter offered evidence tending to support her theory of the case. The defendants sought to prove their theory of the case by testimony from the plaintiff's witnesses. The defendants put on no additional testimony. There was ample evidence to support the jury's finding that the ramp was unsafe.

In view of the evidence that the ramp was unsafe, the jury was justified in finding that some, if not all, of the defendants were negligent.

The defendants urge in support of their judgment n. o. v. that even if they were negligent, as the jury found that they were, Mrs. Ritter is barred both by her own contributory negligence as a matter of law and by voluntary assumption of risk as a matter of law. The third separate of defense was unsupported by any evidence and appears to have been abandoned.

Contributory negligence in the particulars alleged in the answer was submitted to the jury in accordance with the defendants' theory of the case. The jury found for the plaintiff. There was a jury question. The verdict settles the matter. It was error to set aside the verdict and enter judgment n. o. v. on any basis of contributory negligence as a matter of law.

The defense of assumption of risk is pleaded in these words: '* * * all of the risks and hazards incumbent upon said employment and particularly the use of said wheel chair on said ramp were obvious and known to plaintiff and she assumed all of the risks thereof.'

The evidence shows that Mrs. Ritter was aware of the possibility of danger to Mr. Beals in the use of the ramp. She testified that she did not want to take her patient down the ramp because she thought it was too steep. She refused to subject Mr. Beals to the risk that the wheel chair might get away from her. She requested an opportunity to test the ramp first with a less fragile passenger in the wheel chair. All of this evidence was evidence from which the jury could have found that Mrs. Ritter knowingly assumed a risk of injury either to (a) the passenger in the wheel chair, or to (b) herself, if the defense was available.

The jury was instructed that Mrs. Ritter could not recover if she voluntarily assumed the known and appreciated risks of using the ramp, or if she proceeded to use the device when she should have known, in the exercise of reasonable care, of the risks involved in such use, notwithstanding the negligence, if any, of the defendants.

The jury having found against the defendants after receiving the instruction summarized above, the question of assumption of risk is closed unless the defendants are correct in their contention that Mrs. Ritter assumed the risk as a matter of law.

The trial court, in entering judgment n. o. v., merely observed that it should have directed a verdict. The evidence, however, fails to bear out the theory that Mrs. Ritter assumed any risk as a matter of law. There is evidence that Mrs. Ritter was afraid her patient might be hurt. Any circumstantial evidence that she appreciated any peril to herself, or that, in the exercise of reasonable care, she should have appreciated any such danger, would be relevant in connection with a jury question of contributory negligence as will appear below.

The fact that Mrs. Ritter expressed doubt about the safety of the ramp and wanted to test it before subjecting her patient to what she thought might be a hazard is evidence of doubt, not evidence of knowledge. Millen v. Pacific Bridge Co., 51 Or. 538, 553, 95 P. 196. Certainly, the court cannot say as a matter of law that Mrs. Ritter assumed a known and obvious risk of danger to herself. The jury having found otherwise, the verdict should not have been set aside upon the ground that she placed herself in a position of danger as a matter of law. Celorie v. Roberts Bros., Inc., 202 Or. 671, 683, 276 P.2d 416.

This court 'looked with disfavor upon the defense of assumption of the risk' in Celorie v. Roberts Bros., Inc., 202 Or. at page 682, 276 P.2d at page 421, and quoted, with reference to risks inherent in the employment, the following from an earlier case:

'The mere fact that the servant observed the physical conditions existing at the time of his employment, does not of itself imply an assumption of the risks of such conditions unless they were so obvious as to impress their danger upon the mind of a person of ordinary care and prudence. An employee must not only be aware of the conditions, but must understand and appreciate the risk.' McBridge, C. J., in Shields v. W. R. Grace & Co., 91 Or. 187, 201, 179 P. 265, 270.

If it were not for another error which will be discussed below and which requires a new trial, it would be sufficient at this point to dispense with further discussion of assumption of risk and merely reinstate the...