Thompson v. Union Fisherman's Co-op. Packing Co.

• Decision Date: 28 April 1925
• Citation: 235 P. 694,118 Or. 436
• Parties: THOMPSON v. UNION FISHERMAN'S COOP. PACKING CO.
• Court: Oregon Supreme Court

235 P. 694

118 Or. 436

THOMPSON v. UNION FISHERMAN'S COOP. PACKING CO.

Supreme Court of Oregon

April 28, 1925

Department 1.

Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.

Action by Marie Thompson, administratrix of the estate of Olga Thompson, deceased, against the Union Fisherman's Co-operative Packing Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Enoch E. Mathison, of Astoria (Mathison & Mannix, of Astoria, on the brief), for appellant.

Frank C. Hesse, of Astoria (Norblad & Hesse, of Astoria, on the brief), for respondent.

RAND J.

This action was brought by plaintiff, as administratrix of the estate of Olga Thompson, her deceased daughter, an employee of the defendant who was killed on August 23, 1920, while on a freight elevator in a cannery owned and operated by the defendant corporation at Astoria.

The complaint alleges that decedent's death was caused by the negligence of the defendant. It alleges that in the conduct of its business the defendant used an elevator which was operated by means of motive power for carrying freight and employees between the different floors of its cannery; that the elevator was not inclosed by any cage or equipment commonly used for the protection of persons using the same, or with any system of signals by which communication could be had between its employees and the person operating it without vocally calling from one floor to another, with which it is alleged it could have been equipped without affecting its efficiency and without unreasonable cost or expense; that plaintiff's intestate at the time of her death was a minor child 15 years of age, was wholly inexperienced in the use or operation of an elevator, and was employed by the defendant on or about August 16, 1920, to do general errand work in and about the cannery, and had been at work but one week; that it was her duty to carry boxes from one floor to another, to work on a lacquering machine, and generally to do and perform such duties as might be required of her, for which she was to be paid at the rate of $3 per day; that her lack of skill and inexperience in the operation or control of an elevator were known, or, by the exercise of due care upon the part of the defendant, would have been known; that other children of about the same age as decedent were employed by the defendant and were permitted to operate the elevator while carrying on their work and while going from one floor to another, and that the use of the elevator by them had become a custom and usage known to the defendant and acquiesced in by it; that decedent had on different occasions operated the elevator with the knowledge of the defendant and with its permission, and had never been instructed not to use the same; that defendant failed to employ a legally competent person to operate its elevator, and on the day of decedent's death had placed the same in charge of one Thomas Nelson, Jr., the son of the manager of the defendant corporation and a boy less than 15 years of age, in violation of the statute which forbids any person, firm, or corporation to employ or permit any person under the age of 18 years to operate an elevator, and makes the violation of the statute a misdemeanor punishable by fine or imprisonment, or both; that in the operation of the cannery the employees quit work at 12 o'clock noon for lunch and were required to resume work at 1 o'clock, p m., and that it was their duty to return to the cannery in time to resume work at 1 o'clock of each day; that on the day when decedent was killed she had returned to the cannery a few minutes before 1 o'clock and there found Thomas Nelson, Jr., in charge of the elevator; that he invited and requested her and another minor child to ride on the elevator with him, and in acceptance of his invitation they went onto the elevator and rode with him, he operating the same; that said Nelson turned on the switch and brought the elevator to the third floor, where he left the decedent and the other minor child on the elevator and went to inspect the machinery of the elevator while the same was in motion without directing them to step off of the elevator or warning them of the dangers incident to their remaining thereon; that he requested them to bring the elevator to the place where he was, and that at the same time some one on the ground floor called for the elevator; that the elevator was started in motion while decedent and the other minor child were on it and being confused by the call from below, in some manner unknown to plaintiff, plaintiff's intestate was caught between the floor of the elevator and the ceiling of the third floor, causing the injuries which resulted in her death; that the defendant had knowledge of the fact that the elevator was of a dangerous character and liable to cause injury or death to its employees, and that the decedent was a minor child, inexperienced in the use of an elevator, and that its employees were in the habit of using the elevator and thus knowing, failed and neglected to prohibit decedent from using the elevator or to caution her against the dangers thereof, and failed to make and publish rules in reference to the use of the elevator or forbidding its use by its minor employees, which acts, it is alleged, was the proximate cause of the injuries and death of the deceased.

It is further alleged that if the defendant had properly instructed the deceased how to use the elevator, or had not permitted her to operate it, or had published rules regarding the use of the elevator and forbidding its use by minors, or had forbidden the deceased to use the elevator, or had employed a person over the age of 18 years to operate it, she would not have been on the elevator at the time of her death, and consequently would not have been injured or killed.

The complaint also alleges that the defendant was negligent in that it had no rules posted in the cannery regulating the use of the elevator or forbidding its use, and that said failure was a proximate cause of the injuries and death of the deceased.

It is also alleged that Thomas Nelson, Jr., the boy who had been placed in charge of the elevator, was incapable of comprehending the dangers incident to the operation of an elevator by a child of the tender years and inexperience of the deceased, and did not realize or appreciate the danger of allowing the deceased to remain on or to operate the same.

The defendant admitted its corporate existence and denied all of the other allegations of the complaint, and by its answer alleged four affirmative defenses. The first is a plea of contributory negligence. By this defense the defendant averred that decedent was thoroughly familiar with the construction of the building where the elevator was installed and with the elevator and the manner in which the same was operated, and "during the term of her employment had many times seen the said elevator operated, and during the lunch hour, while not carrying out any of the duties of her employment, unbeknown to defendant, had many times secretly ridden thereon for her own pleasure and amusement, but that nevertheless said Olga Thompson carelessly and negligently allowed her head or other parts of her body to protrude or extend beyond the platform of said elevator, well knowing, or, by the exercise of reasonable care and diligence, capable of knowing and appreciating, that by her allowing her head or other parts of her body to protrude or extend beyond the platform of said elevator, her head or other parts of her body so protruding or extending would or might come in contact with the floors or ceiling of said building as said elevator ascended or descended, and was liable to be caught by said automatically falling gate. That said Olga Thompson, in so failing to exercise reasonable care in the particulars as heretofore alleged, was guilty of contributory negligence, and said Olga Thompson's said negligence contributed towards the receiving of her said injuries, resulting in her death, and was one of the concurrent, proximate causes thereof."

In the second affirmative defense the defendant repeats the allegations of the first affirmative defense as to the acquaintance of decedent with the elevator and the building, and alleges that decedent knew that the elevator was not used for the purpose of carrying employees from one floor to another, but was used exclusively by a few adult employees while raising or lowering heavy articles from one floor to another. It then alleges:

"That, at the time said Olga Thompson received her said injuries, she was not carrying out any of the duties of her said employment, but was riding on said elevator for her own pleasure and amusement, and in play, and for the further purpose of gratifying the curiosity of one certain Thomas Nelson, Jr., a fellow servant and the operator in charge of said elevator, and that, in doing so, said Olga Thompson assumed all of the risks, dangers, and hazards incident to the construction of said building and said elevator, and the operation thereof."

By its third defense defendant alleges that the elevator was of standard make and in good operating condition. It then repeats the allegation of decedent's knowledge of its not being used to carry employees from one floor to another, and closes with the allegation that--

"The said Olga Thompson well knew that she had no right or authority to operate said elevator, or to use the same, and that the said elevator was not one of the places in which, or on which the said Olga Thompson was to work, or carry out or perform any of the duties of her employment."

By its fourth defense it alleges that decedent and young Nelson were fellow servants. Its allegations in that regard are...