Swanstrom v. Frost

• Decision Date: 12 May 1914
• Citation: 26 Idaho 79,140 P. 1105
• Parties: OTTO SWANSTROM, Respondent, v. W. E. FROST, Doing Business as the FROST-COPE LUMBER CO., Appellant
• Court: Idaho Supreme Court

140 P. 1105

26 Idaho 79

OTTO SWANSTROM, Respondent, v. W. E. FROST, Doing Business as the FROST-COPE LUMBER CO., Appellant

Supreme Court of Idaho

May 12, 1914

PERSONAL INJURY-NEGLIGENCE-CONTRIBUTORY NEGLIGENCE-ASSUMPTION OF RISK.

1. Facts of this case examined, and held sufficient to support a verdict that the defendant was guilty of negligence and to warrant a verdict and judgment for damages.

2. Where a log decker was injured by being knocked off the deck by a "gunning" log and sues his employer for damages and charges that the master was negligent in that he furnished a deaf teamster to drive the team that was doing the cross hauling, and that he did not furnish a reasonably safe place for the team, and that, on the contrary, the place where the team had to walk was so muddy swampy and unsafe that it irritated and excited the team so that they could not be stopped upon signal, and that his injuries resulted from either a failure of the driver to hear the signal or the inability of the driver to stop the team upon receiving the signal, and there is some evidence in the record which would sustain either one or both of the contentions, the verdict and judgment in favor of the party injured will not be disturbed, even though the preponderance of the evidence is against his contention.

APPEAL from the District Court of the Eighth Judicial District for the County of Bonner. Hon. John M. Flynn, Judge.

Action for damages. Judgment for plaintiff. Defendant appeals. Affirmed.

Judgment affirmed. Costs awarded in favor of respondent.

G. H Martin, for Appellant.

Negligence cannot be based on problematical causes. The plaintiff must show that his injuries resulted from some cause, which was not one of the hazards incident to the business. (Minty v. Union P. Ry. Co., 2 Idaho 471, 21 P. 660, 4 L. R. A 409.)

A master is not required to furnish the servant with a safe place to work as against a danger, which is temporary and arises from the risks and hazards of the work itself and which is known to the servant. In such a case the servant assumes the risk. (Rippetoe v. Feely, 20 Idaho 619, 637, 119 P. 465; Davis v. Trade Dollar Consol. Min. Co., 117 F. 122, 54 C. C. A. 636; Armour v. Hahn, 111 U.S. 313, 4 S.Ct. 433, 28 L.Ed. 440; Koontz v. Chicago etc. R. R. Co., 65 Iowa 224; 54 Am. Rep. 5, 21 N.W. 577; McKee v. Chicago etc. Ry. Co., 83 Iowa 616, 50 N.W. 209, 13 L. R. A. 817; Lowe v. Oak Point etc. Lumber Co., 75 Wash. 518, 135 P. 219; Labatt, Master and Servant, sec. 269.)

A recovery on the part of the servant is denied where it appears that the servant himself selected the course of action which led to the injury complained of. (Labatt, Master and Servant, sec. 258; Hanson v. Shipley, 71 Wash. 632, 129 P. 377.)

The act of the plaintiff in deliberately stepping toward the log and then stepping upon it was the cause of his injuries. No ordinarily prudent man familiar with that kind of work, as the plaintiff was, would have done what the plaintiff did under the circumstances, and this is the test of contributory negligence. (Rippetoe v. Feely, 20 Idaho 637, 119 P. 465; Goure v. Storey, 17 Idaho 352, 105 P. 794; Lowe v. Oak Point etc. Lumber Co., supra.)

O. J. Bandelin and Geo. M. Ferris, for Respondent.

"When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them, that the question of negligence is ever considered as one of law for the court." (Calkins v. Blackwell Lumber Co., 23 Idaho 141, 129 P. 435; Texas etc. R. Co. v. Gentry, 163 U.S. 353, 16 S.Ct. 1104, 41 L.Ed. 186; Staab v. Rocky Mt. Bell Tel. Co., 23 Idaho 314, 129 P. 1078.)

It is a positive duty which the master owes to an employee not only to provide him with a reasonably safe place in which to work--so far as the nature of the work undertaken and the exigencies of the case will permit the same to be made reasonably safe--but also to observe such care as will not expose the employee to perils and dangers which may be guarded against by reasonble care and diligence. (Myrberg v. Baltimore etc. Min. Co., 25 Wash. 364, 65 P. 539.)

As to whether the negligence charged was the proximate cause of the injury was clearly a question for the jury. (Pilmer v. Boise Traction Co., 14 Idaho 341, 125 Am. St. 161, 94 P. 432, 15 L. R. A., N. S., 254.)

Where the injury would not have happened but for unknown defects, the servant is not held to have been guilty of contributory negligence. (Missouri P. Ry. Co. v. Somers, 78 Tex. 439, 14 S.W. 779; Maloney v. Winston Bros. Co., 18 Idaho 748, 111 P. 1080, 47 L. R. A., N. S., 634; Westerlund v. Rothschild, 53 Wash. 626, 102 P. 765.)

Defects in the instrumentality are not among the risks assumed, and employee was not guilty of contributory negligence in failing to make an inspection. (De Maries v. Jameson, 98 Minn. 453, 108 N.W. 830.)

A servant is not necessarily chargeable with negligence because he failed to select the best means of security in that emergency. (Carscallen v. Coeur D'Alene etc. Transp. Co., 15 Idaho 444, 98 P. 622, 16 Ann. Cas. 544; Wheeler v. Oregon R. & Nav. Co., 16 Idaho 375, 102 P. 347; Maw v. Coast Lumber Co., 19 Idaho 396, 114 P. 9; 1 Labatt on Master and Servant, p. 929, sec. 358.)

When the question of contributory negligence is presented, and there is a conflict in the evidence, the jury are the exclusive judges of the weight and preponderance of the evidence and may determine for themselves as to whether the defense of contributory negligence has been made out. (Staab v. Rocky Mt. Tel. Co., supra; Rippetoe v. Feely, 20 Idaho 635, 119 P. 465.)

AILSHIE, C. J. Sullivan, J., concurs.

OPINION

AILSHIE, C. J.

This action was instituted by the plaintiff in the lower court for the recovery of damages for personal injuries resulting from the alleged negligence of the defendant. The plaintiff received his injuries while "decking" logs. It appears that the plaintiff, who is respondent in this court, was a log decker, and was set to work by appellant decking sawlogs while the logs were being hauled upon the deck by means of a team attached to a long chain, and the logs were thus being elevated to the deck by a method called "cross-hauling." The team was driven by another employee of the appellant. While the logs were being hauled up the skidway to the deck, it was the duty of respondent to signal the teamster whenever he desired the team to stop, and it was the duty of the teamster to stop on the signal from the man on the deck.

The...