Skeeters v. Skeeters

Decision Date13 February 1964
Citation389 P.2d 313,237 Or. 204
PartiesEverett SKEETERS, Respondent, v. Charles SKEETERS and Richard O. Skeeters, dba Skeeters and Skeeters, Appellants.
CourtOregon Supreme Court

William C. Martin, Portland, argued the cause for appellants. With him on the brief were Dusenbery, Martin, Beatty & Parks and Varne Dusenbery, Portland.

Gene L. Brown, Grants Pass, argued the cause for respondent. With him on the brief was R. Gene Smith, Grants Pass.

Before ROSSMAN, P. J., and PERRY, SLOAN, O'CONNELL, GOODWIN, DENECKE, and LUSK, JJ.

ROSSMAN, Justice.

This is an appeal by the defendants, Charles Skeeters and Richard O. Skeeters, who are partners, from a judgment of the circuit court which is based upon a jury's verdict. The plaintiff is the brother of one of the defendants and the uncle of the other. The plaintiff sustained the injuries, upon which this case is based, while working in the employ of the defendants on a piece of road building equipment known as a rock crusher. The challenged judgment awarded him general damages in the amount of $81,000 and special damages totaling $15,580.

The complaint alleged that the defendants failed to observe the demands of (a) due care, (b) the Oregon Employers' Liability Law (ORS 654.305), and (c) the Basic Safety Code, Part 1, Chapter III, Sections 3.1, 3.2, 3.3, and 3.5 (promulgated by the State Industrial Accident Commission pursuant to ORS 654.005 to 654.100). Specifically, the complaint charged the defendants failed to (1) equip the rock crusher with adequate guards and baffles to prevent rocks from coming into contact with moving belts and the power drive of the machine; (2) equip the rock crusher with guards in accordance with the Basic Safety Code; and (3) use every device and precaution which it was practicable to use without impairing the efficiency of the machine as demanded by the Employers' Liability Law.

The answer denied all charges of negligence. It alleged that plaintiff was in charge of the rock crusher with a resulting duty to install safety devices and that his injuries were due to his failure to wear a 'hard hat' which was provided for his use. Defendants alleged as a separate affirmative defense that plaintiff had executed a writing releasing them from liability. Appellants (defendants) moved for a directed verdict and for judgment notwithstanding the verdict; both motions were denied.

Defendants (appellants) were engaged in logging operations under the partnership name of Skeeters and Skeeters. Their operation included the building of logging roads near Medford. In the road building operation they employed the rock crusher which we have mentioned to break large quarry rock into smaller pieces suitable for spreading on the roads they were building. The large quarry rock, about nine to ten inches in diameter, was dumped into one end of the machine where it was forced through rollers and a 'jaw crusher' mechanism which broke it into small size. The crushed rock was moved over a 'shaker screen' which separated the pieces of the desired size from those which had to be returned to the 'jaw crusher' for further processing. The rocks of the desired size passed through the shaker screen and were dumped on the ground at the other end of the crusher to be loaded into trucks.

On the outside of the machine there were large flywheels which were rotated by belts that passed around drive wheels also located on the outside of the machine. At the time of the accident precipitating this cause of action there were no guards around the belts or flywheels.

Plaintiff's testimony and that of two other employees of the defendants who worked near the rock crusher reveal that rocks occasionally bounced out of the rock crusher and struck the rotating belts and flywheels. The plaintiff testified:

'A Yes, I've seen lots of rock jump off the screen and go over the sides.

'Q When they went over the side could you see where they went?

'A Yes. They went right down through--well, on several occasions it knocked a set of belts off.

'Q And when they went into the belts what happened to the rock?

'A I don't know. They went so fast you didn't know.

* * *

* * *

'A Yes. They get to jumping on the screen and they go over the sides.

'Q And when they went over the sides they would go down into the belts? Is that what you said?

'A Yes, the belts and flywheels.

'Q And then they would fly out?

'A That's right.'

Orval Laughoff, a mechanic for the defendants, when asked the purpose of a baffle which had been built to be installed over the shaker screen, responded in this manner.

'Q And what was its purpose?

'A Well, sometimes when the screen runs a little bit empty with larger rock, why, the larger rocks will bounce and get into the belt.'

Warren Barr, the shovel operator, testified:

'Q State if at any time during your observation, did you ever notice or observe any rocks jumping off of the shaker screen on the crusher?

'A Well, at times I have noticed some of them falling off the shaker screen, but I never seen them actually fly from where I was at. I was usually working on the back end of it.'

At about 8:30 on the morning of October 28, 1959, the date of plaintiff's injury, he was standing on a 'catwalk' located on the crusher. The 'catwalk' was attached near the top of the machine approximately ten feet from the ground and slightly above the shaker screen. Plaintiff was bending over removing mud and roots from some of the belts when he was struck on the head with great force by some object. There were no eyewitnesses to the accident and no direct evidence as to what the object was or from whence it came. However, the defendants submitted for introduction into evidence the claim report which they made to the Northern Life Insurance Company, their insurance carrier, and which states that the plaintiff received his injury by being struck in the head by a rock. The report was received in evidence. When the trial judge denied the defendants' motions for a new trial and the entry of judgment for the defendants notwithstanding the verdict, he did so by a memo opinion which referred in the following manner to the defendants' report to its insurance carrier:

'* * * an initial claim report which was made to the Northern Life Insurance Company received as defendants' exhibit 'C', was prepared shortly after the accident, and states that the injury was received by a rock striking right side of skull and it is apparent that defendants were satisfied with this explanation of the accident as their bookkeeper filled in the employer's side of the exhibit indicating thereon that plaintiff was injured in the regular course of his employment and that the validity of the claim was not questioned.'

Thus, the report containing an entry that the plaintiff received his injury by being struck on the right side of his skull by a rock was given by the defendants to their insurance carrier. Upon the offer of the defendants it was received in evidence.

Plaintiff was taken unconscious to a hospital where he underwent emergency operations for three hours. His injury was diagnosed as a compound, comminuted, depressed skull fracture of the right frontal area with brain damage. A metal plate was subsequently put into plaintiff's head to repair the hole in his skull. The attending physician testified the injuries could have been caused by a rock thrown with great force against the plaintiff's head. The plaintiff alleges that as a result of his injury he has continual headaches, impairment of his eyesight, partial paralysis of his right side, is subject to epileptic convulsions and dizziness, and is unable to return to work.

The plaintiff was released from the hospital on November 10, 1959, after 13 days of confinement. The next day, November 11, he was interviewed by two agents of Northern Life Insurance Company, aforementioned, which had issued an insurance policy to the defendants covering their employees. The agents asked plaintiff several questions concerning the accident, and one of them made some entries upon a form. The plaintiff signed the form in two places. The form also contains entries made by the defendants together with the signature of their firm. This document, introduced in evidence by defendants, is the one to which we have referred and which is entitled 'Initial Claim Report'; it contains near the bottom a clause denominated 'Election to Receive Insurance Benefits.' In substance the defendants allege that by signing the latter clause the plaintiff elected to receive the benefits of the policy in lieu of all other claims against his employers for the injuries. Plaintiff received and cashed three checks totaling $1020; all other payments tendered by the insurance company were rejected by him.

The defendants present fifteen assignments of error. Many of them raise the same issue. Consequently, we will concern ourselves with the issues raised without necessarily quoting the assignment of error or pursuing the numerical order designated by the appellants (defendants).

The defendants contend in their first assignment of error that the trial court erred in denying their motion for a directed verdict (see Appendix B, Illustrations 2 and 3, Rules of the Supreme Court). They urge essentially three grounds in support of their motion. First, that there was insufficient evidence to sustain the allegations of negligence on the part of defendants. Specifically, the defendants argue that a lack of evidence as to what actually struck the plaintiff or from where the object came, required the jury to engage in speculation and conjecture in arriving at their verdict. Secondly, that the plaintiff was a vice principal as a matter of law and that as a vice principal he was in charge of the rock crusher and responsible for installation of any safety device. They urge as a third ground that plaintiff's own recklessness in failing to wear a hard...

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22 cases
  • Hickey v. Settlemier
    • United States
    • Oregon Court of Appeals
    • July 16, 1996
    ...merely permitted the jury to speculate as to whether certain conditions existed at any particular time. See Skeeters v. Skeeters, 237 Or. 204, 214-15, 389 P.2d 313 (1964) ("[T]he jury cannot be permitted to speculate, [but] can be allowed to draw reasonable inferences. * * * [P]laintiff has......
  • Yeatts v. Polygon Nw. Co.
    • United States
    • Oregon Court of Appeals
    • July 14, 2021
    ...then hold his employer responsible if his injuries result from his own failure to have complied with the ELL. Skeeters v. Skeeters , 237 Or. 204, 220-21, 389 P.2d 313 (1964). Stated differently, the vice-principal rule operates to deny a plaintiff relief against his employer for a violation......
  • State v. Bivins
    • United States
    • Oregon Court of Appeals
    • January 21, 2004
    ...sound. We agree that a jury could so infer, because such an inference is consistent with common experience. See Skeeters v. Skeeters, 237 Or. 204, 214, 389 P.2d 313 (1964) (although a jury cannot be permitted to speculate, it may rely on common experience to draw inferences). But that infer......
  • Faber v. Roelofs
    • United States
    • Minnesota Supreme Court
    • November 16, 1973
    ...v. United States, 270 F.2d 488 (9 Cir. 1959), certiorari denied, 362 U.S. 924, 80 S.Ct. 677, 4 L.Ed.2d 742 (1960); Skeeters v. Skeeters, 237 Or. 204, 389 P.2d 313, (1964); Franklin v. Webber, 93 Or. 151, 182 P. 819 (1919); Brown v. Quick Mix Co., 75 Wash.2d 833, 454 P.2d 205 (1969); Hatcher......
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