Suko v. Northwestern Ice Co.

• Decision Date: 13 May 1941
• Citation: 113 P.2d 209,166 Or. 557
• Parties: SUKO <I>v.</I> NORTHWESTERN ICE & COLD STORAGE CO. ET AL.
• Court: Oregon Supreme Court

166 Or. 557

113 P.2d 209

SUKOv.

NORTHWESTERN ICE & COLD STORAGE CO. ET AL.

Supreme Court of Oregon.

Argued March 20, 1941.

Affirmed May 13, 1941.

Rehearing denied June 17, 1941.

Landlord and tenant — Waters and water courses

1. Lessee bringing water upon premises under its exclusive control and storing water in an elevated tank was bound to exercise a degree of care proportionate to the injuries likely to result to others if the tank should prove incapable of confining the water.

Landlord and tenant — Res ipsa loquitur

2. Where lessee stored water in an elevated tank on premises under lessee's exclusive control and the tank burst and injured plaintiff who resided in a house on adjoining premises, the "res ipsa loquitur" doctrine applied, since in the ordinary course of matters the mishap would not have occurred except through carelessness in the construction, inspection or use of the tank.

Landlord and tenant — Negligence — Pleading

3. Where lessee stored water in an elevated tank on premises under lessee's exclusive control and the tank burst and injured plaintiff who resided in a house on adjoining premises, the fact that plaintiff in his complaint charged the lessee with specific acts of negligence did not deprive plaintiff of the benefit of the res ipsa loquitur doctrine so far as concerned the acts alleged.

Landlord and tenant — Negligence — Proof

4. Where lessee stored water in an elevated tank on premises under lessee's exclusive control and the tank burst and injured plaintiff who resided in a house on adjoining premises, plaintiff suing for personal injuries, was not required to give direct evidence of negligence on the part of the lessee inasmuch as proof of the manner in which the accident occurred was, in itself, under rule of res ipsa loquitur a "prima facie" showing of the negligence.

Landlord and tenant — Negligence — Prima facie case

5. Where lessee stored water in an elevated tank on premises under lessee's exclusive control and the tank burst and injured plaintiff who resided in a house on adjoining premises, when plaintiff, suing for personal injuries, proved the collapse of the tank and the injury suffered by him as a result thereof, he made out a "prima facie" case of negligence on the part of the lessee, and where the lessee attempted to show that it was not at fault, whether the preponderance of the evidence was in favor of the plaintiff was for the jury.

Trial — Instructions — Degree of care

6. Where lessee stored water in an elevated tank on premises under lessee's exclusive control and the tank burst and injured plaintiff who resided in a house on adjoining premises, in plaintiff's action for personal injuries, instruction regarding care which lessee was required to exercise in regard to the maintenance and use of the tank was not objectionable, in view of other instructions.

Negligence — Reasonable care

7. What would be "reasonable care" or "ordinary care" under any circumstances is determined by the degree or extent of the damage which might be inflicted by lack of proper care, and a very high degree of danger calls for a very high degree of care which amounts to no more than ordinary care in such a case.

Negligence — Degree of care

8. The location of a water tank above a busy thoroughfare in a large metropolis required a greater degree of care in its maintenance and use than would have been the case had it been located in a remote and lonely district.

Landlord and tenant — Jury question

9. Where lessee stored water in an elevated tank on premises under lessee's exclusive control and the tank burst and injured plaintiff who resided in a house on adjoining premises, in view of conflict in testimony regarding what would be reasonable inspection of the tank under the circumstances, it was for jury to determine what would constitute a reasonably careful examination of the tank by the lessee.

Trial — Instructions — Degree of care

10. Where lessee stored water in an elevated tank on premises under lessee's exclusive control and the tank burst and injured plaintiff who resided in a house on adjoining premises, lessee's requested instruction informing jury that all that was required of the lessee under the circumstances was to exercise the same degree of care that an ordinarily prudent man would exercise who was unskilled in such mechanical construction was properly rejected as usurping the jury's right of determining whether the lessee had exercised care commensurate with the peril involved.

Appeal and error — Objections on appeal

11. Objection to admission of evidence raised for first time on appeal could not be considered.

Evidence — Exhibit — Articles connected with case

12. Where lessee stored water in an elevated tank on premises under lessee's exclusive control and the tank burst and injured plaintiff who resided in a house on adjoining premises, and witness testified that a threaded piece of steel with a nut attached looked

very much like the end of one of the hoops of the tank and the steel was of the same size as the end of hoop and had been covered with alumninum paint in the same manner as the hoop, the steel was sufficiently identified to be admissible in evidence for purpose of showing that the break in it had existed for some time prior to the bursting of the tank and the fact that it had not been discovered in dining room of plaintiff's home until two days after the accident went to its probative force and not to its admissibility.

Appeal and error — Instructions

13. Ground for excepting to instruction not presented to circuit court could not be considered on appeal.

Damages — Loss of wages

14. Where plaintiff suing for personal injuries alleged that for more than five months he was unable to work at all and that he "will always be unable to do more than a small part of his work as a barber, thereby permanently impairing his earning power," the complaint was comprehensive enough to cover damages for loss of wages.

Trial — Instructions

15. The refusal to give requested instruction, the substance of which was embodied in instructions given, was not error.

                  See 20 R.C.L. 74 (7 Perm. Supp., 4824)
                  36 C.J., Landlord and Tenant, § 968
                

Before KELLY, Chief Justice, and BELT, BAILEY, LUSK, RAND and ROSSMAN, Associate Justices.

Appeal from Circuit Court, Multnomah County.

T.E.J. DUFFY, Judge.

Personal injury action by Albert Suko against the Northwestern Ice & Cold Storage Company and others. From a judgment in favor of plaintiff against the named defendant, it appeals.

AFFIRMED. REHEARING DENIED.

C.D. Phillips, of Portland (Griffith, Peck & Coke and Maurice W. Seitz, all of Portland, on the brief), for appellant.

Leo Levenson, of Portland (Prendergast & Prendergast, of Portland, on the brief), for respondent.

BAILEY, J.

This action was brought by Albert Suko against Northwestern Ice & Cold Storage Company, a corporation, and the officers and trustees of E. Henry Wemme Endowment Fund, a charitable corporation, to recover damages for personal injuries suffered by him as the result of the bursting of a water tank. An involuntary nonsuit was entered against the plaintiff and in favor of the officers and trustees of the charitable corporation. From a judgment in favor of the plaintiff and against the cold storage company that defendant appeals.

On October 1, 1929, the charitable corporation leased to the cold storage company, which hereinafter will be referred to as the defendant, the south 120 feet of block 72, East Portland, within the corporate limits of the city of Portland, for a period of 50 years at a monthly rental of $406.50 for the first 158 months of the term and the sum of $10 per year for the remainder thereof, with an option to the lessee to purchase the property at any time within the first 158 months of the demised term for $44,336.85, the lessee to receive credit on the purchase price for $280.60 per month from the date of the lease to the time of purchase. At the time the plaintiff was injured the defendant had not exercised the option.

The leasing agreement between the defendant and the charitable corporation provides that:

"The lessor shall not be required to make any repairs, alterations, additions, or improvements to or upon said demised premises during the term of this lease; and the lessee hereby agrees to maintain and keep said premises in good repair and condition, including the replacement of broken glass, during the entire term of this lease at its own cost and expense. The lessee is given the right and privilege to make improvements and additions upon said property in order to adapt said property and the buildings thereon to the uses of said lessee, ...

* * *

"That the lessor shall in no wise be liable for any accident or injury to any goods or person whatsoever happening in or about said premises, ... and that the said lessor shall not be responsible or liable in any way for damage to life, limb or property caused in or about said premises ... nor shall the lessor be liable for any damage or loss to person or property caused by or as a result of any business conducted upon said premises, or by reason or as a result of the lessee's occupancy of said premises, ... or by reason of the negligence of any person whomsoever in or around said premises".

When the lease was entered into there was located on the demised property a four-story reinforced concrete building approximately 50 feet in height. The west end of the building faced Northeast Third avenue. On the top of the building, at the extreme northwest corner thereof, was a reinforced concrete superstructure or platform approximately 18 feet above the roof of the building, on which platform stood a circular tank used to store water for fire protection in connection with an automatic sprinkler system. The tank was about 16 feet in diameter and 24 feet high, constructed of wood and bound with steel hoops. It had a capacity of 30,000 gallons, but was not...