Ritter v. BEALS

PERRY, J.,

dissenting.

I am unable to agree with the majority in reversing the trial court’s order granting the defendants a judgment non obstante veredicto.

The rule of law effecting liability of a master for *529 injuries suffered by an employee, spoken of as assumption of risk, is set forth by this court in. an approved instruction in Hagermann v. Chapman Timber Co., 65 Or 588, 594 , 133 P 342 .

“ ‘If you find from the evidence that at the time plaintiff was hurt, he was just as well aware of the danger of doing said work under the conditions existing at said time as his employer was, and that such danger was open and obvious, and could have been discovered by the plaintiff by the use of ordinary care, then I instruct you that Hagermann assumed the risk and cannot recover, and your verdict should be for the defendant.’ ”

This rule of law has been followed consistently by this court in all cases involving this rule of law. Holmberg v. Jacobs, 77 Or 246 , 150 P 284 ; Filkins v. Post Lbr. Co., 71 Or 249, 142 P 578 ; Westman v. Wind River Lum. Co., 50 Or 137 , 91 P 478 ; Blust v. Pacific Telephone Co., 48 Or 34 , 84 P 847 ; Roth v. N.P.L. Co., 18 Or 205 , 22 P 842 .

This in essence is the same rule of law relative to the assumption of risk by a third party who does not stand in a servant relationship to a defendant. “ * * * the rule of law is that one who voluntarily assumes a position of danger, the hazards of which he understands and appreciates, cannot recover for an injury from a risk incident to the position: * * Carroll v. Grande Ronde Elec. Co., 47 Or 424, 442 , 84 P 389 , cited with approval in Bockman v. Mitchell Bros. Truck Lines, 213 Or 88 , 320 P2d 266 , and Jamersov, Adm’x., v. Witt, Executrix, 215 Or 227, 242 , 332 P2d 1054 .

So, in either case, whether we use assumption of risk in the sense that it arises out of the contractual relationship existing between master and servant, or assumption of risk as known in the law of contributory *530 negligence, the rule for all practical purposes is the same,—knowledge of danger and an apparent willingness to encounter the risks involved in the known situation.

In Bockman v. Mitchell Bros. Truck Lines, supra, p. 95, this court said:

“We think the conduct of a plaintiff who voluntarily assumes a position of known risk in a ease such as this is properly called contributory negligence. We will not enlarge this opinion by considering whether it is technically precise to also describe it as assumption of risk. Some decisions and texts do so but the use of that term has not changed the standards by which the conduct is measured. We refer those interested in further pursuing the subject to Hunt v. Portland Baseball Club, 207 Or 337 , 296 P2d 495 , Prosser, Torts (2nd ed) 303, § 55 and 2 Restatement, Torts 1230, § 466.”

The majority state:

“The fact that Mrs. Ritter expressed doubt about the safety of the ramp and wanted to test it before subjecting her patient to what she thought might be a hazard is evidence of doubt, not evidence of knowledge.”

Citing as authority Millen v. Pacific Bridge Co., 51 Or 538, 553 , 95 P 196 .

The facts in the case cited are so different from those present here that in my opinion the case will not support the position of the majority.

In Millen v. Pacific Bridge Co., supra, 51 Or 538, 548-549, 550-551 , the court states the facts as follows:

“* * * The evidence discloses that Larsen, plaintiff’s intestate, was employed by defendant on the 19th of April as a common laborer to shovel dirt and assist in that capacity to dig a trench for *531 the construction of a sewer. At that time the trench on Thompson street lacked about 8 feet of being completed. On the 20th he assisted in digging out a portion of this eight feet of earth. At different places, and wherever needed, defendant had previously shored up and protected with timber the banks or walls of this trench to prevent it from falling or caving upon its employees while they were engaged at Avork therein. This had been done by one of its servants employed for that particular duty, and was not required to be done by those engaged to dig and shovel dirt. But no supports or timbers had been placed across the perpendicular wall or bank at the end of this open trench where the tunnel was to begin, excepting one brace which had been placed about 3 feet from the top of the bank, but slightly removed from it; the intention being to put lagging or planks behind it to hold the earth in place, but this was not done. On the next day, when Larsen returned to work, he and another employee were directed to begin digging into the face of this bank. They had been working about three hours when a quantity of earth broke off the face of the bank just above and at the entrance of the tunnel fell on Larsen and so injured him that he soon thereafter died. The testimony is conflicting as to how far into the bank the tunnel had been excavated when the accident occurred, but it is stated by some witnesses for plaintiff that its extreme depth was six feet. All agree that it was six feet high and six feet Avide, presumably the intended dimensions of the tunnel when completed. At the time of receiving the injury Larsen could not have been entirely Avithin the tunnel, but was just at the entrance thereof, for the body of falling earth came from the northeast corner of the ‘face’ or entrance thereof, and, according to the testimony of J. S. Reagan, defendant’s Avitness, the bulk of it came from the bank above the entrance and extended from the surface of the ground down to the roof of the tunnel. The place where Larsen was put to work had been created by defendant before it *532 employed him, and that it was a dangerous place the casualty establishes. There is evidence that the defendant knew, or was bound to know, of the imminence of that danger. It is contended by defendant, however, that the danger was so apparent, open, and manifest that a person of ordinary intelligence could observe and appreciate it, and that Larsen, when he first entered the trench, then about 25 or 26 feet deep, must have seen that the end thereof was not shored, and that to dig into the base of a perpendicular bank of that height and undermine it would cause the unsupported part above to fall upon and injure him; that this danger was so apparent and obvious to him that the law will not permit him to deny knowledge of the ordinary and universal law of nature—the law of gravity. # # *

“The evidence shows that at the place where the tunnel was to be dug the earth was composed of clay and loam which, when not undermined, would ordinarily stand at a perpendicular height of 28 feet. But the defendant knew that it had been necessary in some places to shore up the sides of the sewer trench to prevent it from caving upon its employees, and it had expended a large sum of money in doing so. It also knew that a day or two before this accident occurred a dangerous crack had appeared on Seventh street close to the bank of the trench at the opposite end of this strip of ground 17 feet long, which was to be tunneled. And after Larsen went to work defendant’s superintendent, O’Neil, came into the trench and marked upon the wall'or end thereof where the tunnel was to be dug, and told one Barnes, a co-employee, to put the men to work at that place. Barnes testifies that after Larsen had gone to work he had a talk with O’Neil about the kind of ground they were to tunnel. The conversation given is as follows: ‘I said I thought the dirt was rotten and would not stand. He said he thought it would. I didn’t know anything about the crack on the Seventh street *533 end. The dirt on the Seventh street end and on Thompson street was apparently the same.’ From plaintiff’s testimony it appears that in the evening of the day before, or two days before, the accident happened, O’Neil had observed a serious crack in the street at or near the opposite end of this section which was to be tunneled, and for that reason refused to allow the night shift to work that night, but sent them home. But there is no evidence that Larsen knew anything of this.”

The court then states, pages 552-553:

“Can it be said, as a matter of law, that the circumstances related in this record show conclusively that the extraordinary risk and danger of this bank caving was so obvious to an ordinarily intelligent person that it would be perceived and appreciated at once? Mr. Chief Justice Moore, in Johnston v. O.S.L. & U.N. Ry. Co. 23 Or. 95—105 ( 31 Pac. 283, 286 ), has defined such a risk as follows : ‘An open, visible risk is such a one as would in an instant appeal to the senses of an intelligent person: Wood, Mas. & Serv. 763. It is so patent that it would be instantly recognized by a person familiar with the business. It is a risk about which there can be no difference of opinion in the minds of intelligent persons accustomed to the service. It is not expected that the servant will make close scrutiny into all the details of the instrumentalities with which he deals. His employment forbids that he should thus spend his time.’ The disastrous result shows that the work which Larsen was directed to perform and was performing was highly dangerous, and indicates that before attempting it, precautions should have been taken to prevent the earth caving. The record shows quite clearly that defendant’s superintendent knew it was dangerous, but we are not able to say that the facts show conclusively that Larsen knew the facts or appreciated the danger. The question whether it would be safe to dig a tunnel into the particular bank in question depends upon something else besides the height of *534 the bank, and it not being timbered or shored, but rather upon the cohesiveness of the soil and other collateral facts. It was not a danger so patent that it would be involuntarily recognized by one inexperienced and unfamiliar with the business, as is plainly shown by the testimony of Barnes, who says that O’Neil thought the tunnel could safely be dug without timberimg, while he did not.” (Italics supplied.)

The above case dealt with the question of whether a reasonable person would know of defects making the work dangerous. If a reasonable person would not know of the defects, but must only surmise the conditions, this was not the equivalent of knowledge and it cannot therefore be said a person appreciated the risk. This issue is not before this court in the case at bar, because, as will later be pointed out, the plaintiff stated she knew of all the defects in the ramp.

If I correctly understand the opinion of the majority, they say, even if it be established the plaintiff knew of the defects in the ramp, she would not be guilty of contributory negligence, because it might be said plaintiff was not conscious of the danger to herself, but “Mrs. Ritter was afraid her patient might be hurt,” and thus there was a question for the jury.

This is a new and novel approach I have never before encountered in the law. If this be true, persons would be excused from a charge of contributory negligence or assumption of risk in taldng hold of a negligently permitted live wire, because, while they knew the wire was charged with electricity, they just wanted to push the wire away because a friend or relative passing that way might grasp the wire, and they were thinldng of what might happen to the other party and not of what might happen to themselves.

*535 The rule of law, as I have always understood it to be, is not what the particular plaintiff thought or did, but what the mythical “reasonably prudent person” would have done under the same or similar circumstances with knowledge of the circumstances then existing. See 2 Restatement, Torts, Contributory Negligence § 475, Standard of Conduct.

That the majority know this to be the rule is clearly pointed out in the case of Shields v. W. R. Grace & Co., 91 Or 187, 201 , 179 P 265 , from which they quote:

“6. The mere fact that the servant observed the physical conditions existing at the time of his employment, does not of itself imply an assumption of the risks of such conditions unless they were so obvious as to impress their danger upon the mind of a person of ordinary care and prudence. * * *” (Italics supplied.)

The case before us is much clearer for it is unnecessary to show that “such conditions” were “obvious.” The plaintiff testified she knew of the dangerous conditions.

The plaintiff, relative to her charge that the ramp was too steep, testified as follows:

“A As soon as they got the first board on, I said, ‘It is going to be that steep?’ and one of them said, ‘Yes’. And I said, ‘That ramp will be too steep.’ I don’t remember which answered me, or whether either answered me. But I stood there and looked a few minutes and turned around and went back in because my three grandchildren were there and my daughter-in-law, from Cloverdale, and I went back in to be with them.

U* # ^ *

*536 “Q Now you said you had some conversation with Mr. Gardner, I think, about how steep the ramp was?

“A I said, ‘The ramp is too steep’, when I went out one time and they had the first plank on.

“Q And that was also based on your experience and training in the use of—

“A Yes, because it was really too steep for one to be safe on. (Italics supplied.)

“Q Yes. What I was going to ask you—that was based upon your experience and your training in the use of wheelchairs and ramps?

“A Yes.

“Q And you knew about that and you knew that it was too steep and appreciated the danger of it; is that right?

“A Yes.

“Q And that’s why you talked about it?

“A That’s why I asked about it.

“Q And when you asked about it what was said?

“A I don’t remember.

“Q Anyway, that was the same steepness as they wound up building the ramp; is that right?

“A It was just finished as it was started.”

Relative to the fact that there were no handrails and, because of their lack, plaintiff charged negligence. She testified as follows:

“A I had asked something about the handrails, ‘Aren’t we going to have handrails’ or rails, on the ramp.

“Q Wh.o did you ask that of?

“A I think I was just talking to Mr. Gardner and Mr. Bales out there working. I was standing on the back porch at the door, talking.

“Q You think you asked Mr. Gardner that?

“A I don’t know whether it was Mr. Gardner. *537 I think it was both, not one, but both, is the way I would say.

“Q And you asked them about handrails, whether there would be handrails; is that right?

“A That’s right.

“Q And they said ‘No’?

“A They said, ‘Not now’.

“Q And did you ask Mr. Beals about handrails ?

“A I don’t remember asking Mr. Beals.

“Q Then you were concerned about the handrails ?

■ “A I was.

“Q Because you knew about the use of wheelchairs on ramps?

“A Yes.

C(% * # # #

“Q Based on what you knew about these ramps and wheelchairs on them you appreciated the situation of not having handrails, did you not?

“A Well, I knew they were needed.

“Q And you knew there weren’t any there when you went to use it?

“A I did.”

Plaintiff’s own statements show there can be no question but that plaintiff knew the ramp was too steep for its intended purpose and that she appreciated this fact. It is equally clear plaintiff knew the ramp without handrails was unsafe for the intended purpose.

Plaintiff also stated: “I would judge [speaking of plaintiff’s patient] at that time he weighed 185 or better.” In speaking of the method of using a wheelchair : “Q. Is it the practice in nursing to back it down? A. Yes.”

With all these faets known to plaintiff let us see what she did:

*538 “A I said I would be afraid to take Mr. Beals down that ramp without trying it first on someone because it was too steep.

“Q What did Mr. Gardner say?

“A He said he would go for a ride with me, so he went for a ride all right.

“Q What kind of a ride? Where was the chair?

“A The chair was on the front porch. It was a glassed in porch at the time. I brought it in the house. He put boards in to make the wheel chair go easier from the porch into the main building. Then he fixed one on the back porch for Mr. Beals so I could get the chair up easier without turning and lifting. I took him up over that, over the front porch into the living room and hall and out on the back porch of the house. And I turned the chair to go out backwards.

“Q Why did you do that?

“A Because that was the way we were taught to take care of a patient.

“Q What was the reason?

“A Patients could fall out of a chair on their faces and be injured.

íí^5 ^ 46s

“Q You then turned the chair and started backward?

“A Yes, I did.

“Q There were handle bars to hold onto; is that right?

“A Yes.

“Q Are you able to tell the jury, Mrs. Bitter, about how far you got down the ramp before you fell? Are you able to tell that?

“A Well, I took a few steps down the ramp and the chair was coming too fast for me and I know I put my left foot against the wheel and somehow I pitched back onto my right side.” (Italics supplied.)

*539 It should be noted in passing that the plaintiff was not being required by her employer to use the ramp. She had previously taken her patient down the steps, but now felt this was too hard for her.

Now, I think it must be conceded from plaintiff’s own statements that the sole purpose of having the defendant Gardner get into the wheel chair was to make a test for the purpose of determining whether the plaintiff was strong enough to control the downward descent of the occupied wheelchair on a ramp that was too steep and had no handrails.

I think it must also be conceded that persons who know anything about the law of gravity would know that if they were not strong enough to hold the occupied chair on wheels on its descent, the chair with this additional weight would push against them and they would either be run over or pushed off of the ramp. It is certain that the plaintiff did know something about the law of gravity because she speaks of the steepness of the ramp.

I cannot believe that reasonable minds can reach any other conclusion but that plaintiff knew the ramp was defective and that she was willing to “voluntarily assume a position of danger” to test the use of the ramp.

I would affirm the judgment of the trial court.