Bottig v. Polsky

HARRIS, J.

1. After the adoption of the constitutional amendment known as Article "VII, Section 3, it was held that the granting of a new trial was not a matter of discretion and— ,

“that an order for the rehearing of a cause could not be sanctioned except when the court had committed some error, which if properly excepted to or seasonably called to the attention of the court and the motion denied, would have been sufficient cause for a reversal of the judgment if it had been brought up for review; and that under such circumstances the trial court upon motion or sua sponte possessed adequate power and was authorized” to correct the error, which it had committed, by granting a new trial. In 1918 this rule was broadened in Archambean v. Edmunson, 87 Or. 476, 487 (171 Pac. 186), where it was said:

“The rule thus established ought in our opinion to be enlarged so that, when by reason of some misapplication of the principles of law to which no exception has been taken, or in consequence of some inadvertence to which attention has not been called, if the court is satisfied that a party has not had his cause properly presented, justice which should be dispensed in all cases sanctions the setting aside of a judgment rendered upon "a verdict and the granting of a new trial, when such action of the lower court does not violate Article YU, Section 3, of the Constitution of Oregon respecting the quantum of evidence.”

In that precedent there was a general verdict and a judgment for the plaintiff. The defendant moved to set aside the judgment rendered for the plaintiff and for the entry of a judgment for the defendant on the ground that the general verdict was inconsistent with the special findings. The trial court granted the defendant’s motion; but subsequently the trial court concluded that its charge to the jury was not sufficiently specific, and although the charge to the jury was not challenged in any manner, the court upon its own motion set aside the second judgment and ordered a new trial. Although, if the question were res integra, it might be difficult to reach the conclusion adopted in Archambeau v. Edmunson, the rule of stare decisis is now applicable; for the doctrine announced through Mr. Justice Moore in Archambean v. Edmunson was followed in an opinion by Mr. Justice Johns speaking for this court in Cathcart v. Marshfield, 89 Or. 401 (174 Pac. 138), and was approved in Duniway v. Hadley, 91 Or. 343, 346 (178 Pac. 942), in an opinion written by Mr. Justice Bean, and therefore may now be regarded as the settled law of this jurisdiction: See, also, State v. Evans, 98 Or. 214, 221 (192 Pac. 1062, 193 Pac. 927). In actual practice, the rule promulgated in Archambeau v. Edmunson will be an aid rather than a hindrance in the administration of real justice; and on that account the doctrine of stare decisis is especially applicable.

2. As previously explained the court instructed the jury that the plaintiff was entitled to a verdict if the defendant was guilty of negligence in any one of the three particulars mentioned in the complaint. The jurors were informed not once but several times that the plaintiff was entitled to a verdict if the employment involved a risk or danger and if the defendant failed to provide a sufficient number of men to do the work. This instruction, when viewed in the light of the evidence, was clearly erroneous; for the reason that there was not a word of testimony to sustain the allegation that the defendant did not employ a sufficient number of men; but upon the contrary every witness who testified upon the subject, including the plaintiff himself, affirmatively declared that there was a sufficient number of men. It had been the practice of the defendant to have three or four, but never more than four men, to do the work. The plaintiff had between November, 1918 and March 5, 1919, helped to load cars with barrels on as many as ten different occasions and on none of those occasions were there more than four men. Neither the plaintiff nor any other witness gave any evidence containing even the slightest suggestion that more than four men ought to have been employed; but upon the contrary the record informs us that the plaintiff as well as other witnesses unequivocally declared that there was a sufficient number of employees present; for the following question was asked and answer given on the direct examination of Bottig:

“Q. I will ask you then, Mr. Bottig, how many men should they have had there to do the work so that the work would be safe and the barrels would not fall down?

“A. He could do that with the men he got there, he got plenty of men to pile them in a safe condition, not take chances on it.”

The witness then explained that one of the men ought to have been directed to hold the barrel in place until the adjoining tier was piled three rows high.

In the memorandum filed by the trial judge he explained that a new trial should be granted because, among other reasons, “the instructions relating to the Employers’ Liability Act were erroneous.” It may be assumed for the purposes of this discussion that most of the instructions relating to the Employers’ Liability Act were correct; but it is clear that the instructions concerning the number of employees were erroneous and prejudicial to the defendant. Manifestly, the case was not properly presented when the jurors were told that they could return a verdict based upon a specification of negligence which was not only without the support of a scintilla of evidence but was expressly disaffirmed by the plaintiff himself as well as every other witness who testified upon the subject. If the defendant had requested and the trial court had refused to charge the jury that there was no evidence to support the allegation that an insufficient number of men was employed, and if the defendant had excepted to such refusal, or, if the defendant had excepted to the instructions actually given concerning this specification of negligence; then in either situation every judicial opinion written by this court having any application whatever to the subject would without a single exception require upon an appeal a reversal of the judgment obtained by the plaintiff, for the plain reason that the instruction was extremely prejudicial to the rights of the defendant. We cannot possibly know whether the verdict was or was not based on the allegation concerning the number of men. If the verdict was in part based upon that allegation, then to that extent the verdict was without support. If the verdict was based solely upon that allegation, then the verdict was wholly without support. Under the rule expressed in Archambean, v. Edmunson the trial court properly allowed a new-trial.

It is argued that the instructions requested by the defendant included a requested instruction which proceeded upon the theory that the jury could return a verdict based upon the allegation concerning an insufficient number of men; and that therefore the defendant invited the court to tell the jury that the Employers’ Liability Act applied and that a verdict could be based upon the allegation relating to the number of employees. The defendant moved for a judgment of nonsuit, contending that the cause did not come within the embrace of the Employers’ Liability Act; and he consistently maintained this contention throughout the trial. The defendant requested an instruction that the Employers’ Liability Act did not apply. The defendant contended that there was no liability whatever; but he also argued that if there was any liability at all it was only because of common-law negligence. It is true that the defendant requested an instruction that the only specifications of negligence were the three already pointed out, and it is also true that the defendant requested the court to charge the jury that—

“these are the only grounds of negligence that you are to take into consideration”;

but it is likewise true that the instructions requested by the defendant and refused by the court were so worded as to require a finding that all the specifications had been sustained by the evidence before a Verdict could be returned for the plaintiff. The instructions requested by the defendant were in the conjunctive and not in the disjunctive. The defendant did not ask the court to give any instruction which would have permitted a verdict based solely upon the allegation concerning the number of employees. It is true that the attention of the court was not directed to the fact that there was no evidence to sustain the allegation relating to the number of men; but it is also true that the situation was one which came clearly within the doctrine of Archambeau v. Edmunson, and hence the trial court was entirely warranted in granting a new trial.

3, 4. In the Circuit Court and also in this, the appellate court, the defendant insisted that the Employers’ Liability Act (Sections 6785 and 6791, Or. L.) does not apply. If the defendant is liable at all under the statute it is only because of the following omnibus clause with which Section 6785, Or. L., is concluded:

“And generally, all owners, contractors or subcontractors and other persons having charge of, or responsible for, any work involving a risk or danger to the employees or the public, shall use every device, care and precaution which it is practicable to use for the protection and safety of life and limb, limited only by the necessity for preserving the efficiency of the structure, machine or other apparatus or device, and without regard to the additional cost of suitable material or safety appliance and devices.”

This clause which is sometimes referred to as the “and generally clause” has been construed by this court, speaking through Mr. Justice Bean in O’Neill v. Odd Fellows’ Home, 89 Or. 382, 389 (174 Pac. 148), to apply only to employments which are inherently dangerous; and, since we deem it peculiarly appropriate here, we now quote at length from that opinion:

“It is manifest that this general clause, providing for care and precaution to be used in work involving a risk or danger, refers to employments additional to those mentioned in the first part of the section, which are similar in kind as to having danger inherent therein, or involved in the same, or combined inextricably, or nearly so, therewith. The act, as its title indicates, embraces within its scope what is usually termed dangerous or hazardous employment. It is a general rule of statutory construction that where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned, unless the legislative intent clearly appears to the contrary: Black on Interpretation of Laws, p. 141; 2 Lewis’ Sutherland Statutory Construction, § 860. In a certain sense, there is a risk or danger in a person going up or down an ordinary flight of stairs in a home, but this is not the kind of risk or danger embraced within the meaning of the statute. It would hardly be said that a person’s work which required him to go up and down ordinary stairs, or hang clothing on a line using a common stepladder two or three feet in height not inherently defective, and with no particular danger involved therein, would be likely to harm or would be perilous, hazardous or unsafe. The whole language of the act denotes that the kind of employment thereby protected is that which is beset with danger, the hazardous, dangerous employments similar to those enumerated in the act, or which under the circumstances or manner in which it is being executed is rendered dangerous, within the meaning of the act: See Olds v. Olds, 88 Or. 209 (171 Pac. 1046, 1048).”

The “and generally clause” may present itself for consideration in two aspects. There are some employments which because of their very nature, as for example working on a line carrying a high voltage of electricity, are as a class regarded as inherently dangerous; the employment when considered in the abstract and spoken of as one of different kinds of employment, without regard to any unusual conditions attending some individual case, is by most if not all persons unhesitatingly classed as a dangerous employment, because it is a kind of employment in which danger inheres; the work involves, has wrapped up in it, embraces danger. See Century Dictionary for a definition of the word “involve.” See, also: Fernald on English Synonyms, Antonyms and Prepositions, pages 301 and 307. On the other hand, there are employments which when considered in the abstract, are never spoken of as dangerous employments; and yet an employment which ordinarily and generally is a nondangerous one may nevertheless, because of the presence of extraordinary and unusual conditions, be converted in some individual case into an employment inherently dangerous.

It is suggested that whenever an injury occurs it speaks for itself and declares itself to be the accomplished result of a risk evolved from the employment; and that since a risk cannot be evolved from an employment unless that employment involves that risk, it necessarily follows that such risk was involved in the employment, and that therefore the employment is within the embrace of the Employers’ Liability Act. Under this view a servant who stubs his toe when ascending an ordinary flight of stairs in the master’s residence and is hurt, is engaged in an employment involving a risk or danger, because, forsooth, he was hurt. This interpretation is equivalent to saying that, regardless of the class of employment and regardless of the conditions attending an employment, the mere occurrence of an injury is irrefutable and conclusive evidence of danger, and that the employer is necessarily liable unless it appears that he has performed his duty by using every practicable care, device and precaution. Such an interpretation of the Employers’ Liability Act takes notice of nothing except the single word “involving,” and gives to that word a meaning which its etymology does not compel, even though the word is viewed alone and without regard to the words accompanying it; and, moreover, such an interpretation gives no heed to the purpose of the statute which is made plain by the title of the act, by the ballot title, by the argument printed in the Voters’ Pamphlet and by the context of the statute. See Turnidge v. Thompson, 89 Or. 637 (175 Pac. 281), where the Employers’ Liability Act is given in full together with the title of the act, the ballot title which appeared upon the ballots used by the voters, an excerpt from the argument printed in the Voters’ Pamphlet, and a narrative of some additional facts shown by the official records. When the body of the act is read in connection with its title and is considered in the light of the language of the ballot title placed before the eyes of every voter in Oregon who went to the polls, and is viewed in the light of the argument appearing in the Voters’ Pamphlet which was sent to every registered voter in Oregon, then, in the view of the writer, it will be impossible to expand the meaning of the statute beyond the boundaries marked out in O’Neill v. Odd Fellows’ Home, 89 Or. 382 (174 Pac. 148). It is now too late to enter into any debate as to whether or not the act applies to an employment which, although ordinarily nonhazardous is in a given instance made dangerous by unusual and peculiar conditions; for that question is foreclosed by numerous precedents and the rule of stare decisis applies with full force. If, therefore, an employment considered as a class is inherently dangerous as explained in O’Neill v. Odd Fellows’ Home, 89 Or. 382 (174 Pac. 148), or, if the conditions in an individual case are such as to render inherently dangerous a work which ordinarily is not dangerous, then in either event the Employers’ Liability Act applies.

5. The defendant argues that there was no machinery uséd and that there was no need for any device, and that therefore the statute does not apply. The language of the statute is: “And generally” an employer having charge of “any work” involving risk or danger shall use “every device, care and precaution.” The inquiry to be made is: Does the work in truth involve a risk or danger? If the work does involve a risk or danger, whether caused by machinery or otherwise, then the statute imposes a prescribed duty upon the employer, and it then becomes pertinent to inquire whether that duty has been performed. The element of danger may be present because of the presence of machinery; or, although there may be a total absence of machinery, the work may nevertheless be such as to involve danger in its highest form. If the employment as a class is inherently dangerous, or, if because of the presence of certain conditions an otherwise nondangerous employment is rendered inherently dangerous, then the Employers’ Liability Act applies and it becomes the duty of the employer to use the care prescribed by the statute. The question as to whether or not a work involves a risk or danger is generally a question of fact to be decided by a jury: Mackay v. Commission of the Port of Toledo, 77 Or. 611, 616 (152 Pac. 250); and, hence, unless as in O’Neill v. Odd Fellows’ Home, 89 Or. 382 (174 Pac. 148), the court, can say as a matter of law that the work does not involve a risk or danger, the question of danger should be submitted to the jury.

When measured by the record presented here the work of piling empty barrels in a boxcar, considered as a class of work, is not in general an inherently dangerous work. If the testimony of Schuster is entirely true, then the barrel which fell upon the plaintiff’s hand was, after being jammed under the roof, safe and carried with it no danger whatever until the plaintiff continued to use the wedged barrel as a pry in disobedience to the instructions of Schuster and by his own negligence the plaintiff himself caused the barrel to fall. If, however, Bottig’s version is correct, then it is a question of fact for the jury to decide whether the work was rendered inherently dangerous because of the insecure position of the offending barrel together with other attending circumstances such as the greasy condition of the barrels, poor light and the hurry required of the men. In other words, it is for the jury to say whether because of the attending circumstances and conditions the work was rendered inherently dangerous. The defendant’s contention that the Employers’ Liability Act is as a matter of law inapplicable cannot be sustained.

Inasmuch as the case is to be retried it is proper to call attention to the complaint. The language of the complaint is in general terms; the pleading in a large measure consists of mere conclusions of law. The motion to make the complaint more definite and certain should have been sustained on the authority of Cameron v. Pacific Lime & Gypsum Co., 73 Or. 510, 517 (144 Pac. 446, Ann. Cas. 1916E, 769), and Camensind v. Freeland Furniture Co., 89 Or. 158, 171 (174 Pac. 139). However, it is not necessary to decide whether the demurrer to the complaint should have been sustained, or whether the complaint is sufficient after verdict and judgment; but it will suffice to say that since the cause is to be remanded for a new trial it will be proper for the Circuit Court to require the complaint to be made more definite and certain. The order granting a new trial is affirmed.

Affirmed.

Benson, J., not sitting.

McBride and Brown, JJ., concur.