Sullivan v. Wakefield

• Decision Date: 01 July 1913
• Citation: 65 Or. 528,133 P. 641
• Parties: SULLIVAN v. WAKEFIELD et al.
• Court: Oregon Supreme Court

133 P. 641

65 Or. 528

SULLIVAN v. WAKEFIELD et al.

Supreme Court of Oregon

July 1, 1913

Department 1.

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Action by Annie P. Sullivan, administratrix, against Robert Wakefield and William Jacobsen, partners as Wakefield &amp Jacobsen. Judgment for defendants was set aside, and plaintiff was granted a new trial, and defendants appeal. Reversed and remanded, with direction to enter judgment for defendants.

This is an action brought to recover from the defendants and appellants $7,500, as alleged damages on account of the death of Wm. H. Sullivan, who was killed by an accident on the 7th day of April, 1909, while working in an excavation in East Portland. Bingham & McClelland had the contract for excavating a basement, putting in cellar walls, and for erecting a building on a block in Portland on the east side of the river. It was necessary in putting in the basement, on account of the character of the ground, to have piles driven into the ground. Bingham & McClelland made a subcontract with Wakefield & Jacobsen, the defendants, to drive the piling.

The pile-driving equipment was the usual equipment for that purpose, but in driving the piles they used a 'follower,' which was a round piece of timber with the bark pealed off, about 18 feet long and about 14 inches in diameter, with an iron band at each end. When a pile was driven to the ground, one end of this "follower" was placed on the pile, and the hammer operated on the top end of the "follower," the object being to drive the pile below the surface of the ground; but the "follower" was not used until the pile had been driven to the surface of the ground. When the "follower" was not in use, it was set to one side where it could be easily picked up by machinery and swung into position to be used.

The basement had been excavated, and the depth of the basement was about 15 feet below the sidewalk, which ran along the side of the excavation. The basement had been excavated by Bingham & McClelland, before the defendants began driving piles. At the time the accident occurred, the pile driver was in action, but the "follower" was not then being used, and it was standing about two feet from the pile driver, with its upper end leaning against the edge of said sidewalk, and the top of the "follower" extending two or three feet above the sidewalk, and the lower end standing in the basement in a leaning position about six feet out of perpendicular.

The deceased, and Mr. Martin, L. Buley, and another man, about three minutes before the accident occurred, by orders of Mr Bingham, who, with his partner, had the original contract for the whole works, went into the excavation to brace up the sidewalk, and were working near the "follower" putting in a brace under the sidewalk when the "follower" fell, striking Mr. Sullivan on the head and killing him. When the "follower" began to fall an employé of the appellant saw it, and shouted, "Look out!" Mr. Sullivan, Mr. Buley, and the other man, who went into the basement to brace up the sidewalk, were not in the employ of the defendants. They were employed by Bingham &amp McClelland, and they were there by orders of Bingham without consulting defendants and without their knowledge.

The evidence shows that the pile-driving crew were busy at work when the accident occurred, and that the working of the pile driver produced only slight vibrations. The defendants had nothing to do with the sidewalk or with bracing it up. The evidence shows that when they stood the "follower" up in a perpendicular position, they tied it, but when they leaned it up against the sidewalk, with the lower end out of perpendicular, as it was when the accident occurred, they did not tie it.

The trial resulted in a verdict and judgment for the defendants. The plaintiff moved for a new trial, for the alleged reasons that the evidence was insufficient to justify the verdict and that the same was against law and for errors of law occurring at the trial and excepted to by plaintiff at the time of the trial. The defendants appealed, and claim that the court below erred in sustaining said motion, and setting aside said verdict and judgment, and in granting a new trial.

Arthur W. Langguth and C.M. Idleman, of Portland, for appellants.

Wilbur, Spencer & Dibble, of Portland, for respondent.

RAMSEY, J. (after stating the facts as above).

The question for decision on this appeal is, whether or not the court below erred in setting aside the verdict and judgment, and in granting a new trial.

We have examined the record, and find that a number of exceptions were taken by the respondent to rulings of the court on the trial, but that there was no error committed by the court in the rulings excepted to. The charge of the court is lengthy, but it was not unfavorable to the respondent, and she did not except to any part thereof.

The respondent excepted to the refusal of the court to give some charges that were requested by her counsel, but the record fails to show what these charges were, and the charges that were given by the court cover all the questions that were for the consideration of the jury.

The trial appears to have been fair in every way. We find no error of law occurring at the trial and excepted to by the respondent.

The only other question for decision is, Was the evidence in the case insufficient to justify or support the verdict, or was the same against the law? It was a general verdict in the usual form in favor of the defendants, which the jury had the right to find under the law and the facts of the case, if they believed from the evidence, that the appellants were not guilty of negligence which was the approximate cause of the injury, or if they believed that the appellants were guilty of negligence, but believed that the deceased was also guilty of negligence contributing to his death.

The evidence was sufficient to be submitted to the jury, but the case was not a strong one for the plaintiff. It is not necessary to discuss the evidence at length, but we will refer to some points in it. It should be noticed, in the first place, that the relationship of master and servant did not exist between the appellants and the deceased. The...