Hardesty v. Largey Lumber Co. , 34 Mont. 151 ( 1906 )

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

This is an action for damages for personal injuries. The plaintiff had judgment in the district court, and the defendant appeals from the judgment, and from an order denying its motion for a new trial.

The plaintiff was a carpenter employed by the defendant about the construction of a planing-mill in Butte. The defendant had caused large quantities of lumber to be brought from its lumber-yard for use in constructing the building. This lumber had been placed in piles near the building being constructed. The negligence is charged as follows: “That on or about the nineteenth day of November, 1901, in depositing lumber for said construction work, the defendant, in negligent disregard of its duty, through its agents, servants and employees, piled a large quantity of heavy timbers, 2"xl0"x20' in size, in so negligent a manner that the pieces in the outside tier or pile of said timbers were laid in one continuous vertical course, one piece upon and above another, to a great height, to wit, the height of about six feet, and said outside tier or pile was in no way tied or bound to the remainder of the said pile, nor in any manner braced or supported to prevent the same from falling, but the same was so negligently piled that it was in such a condition of unstable equilibrium that it required but slight force to overthrow and to cause said outside tier or pile to fall away from the remainder of said pile.”

“That defendant knew, or in the exercise of due diligence would have known, of the dangerous condition of said pile, but in negligent disregard of its duty in the premises, it permitted said pile to be and remain in said dangerous and unstable condition, until the twentieth day of November, 1901, when plaintiff, in the course of his said employment, was ordered by said foreman to carry to said mill certain lumber from another pile adjoining the pile last above described, and distant therefrom about four feet; that at said time plaintiff was ignorant of the dangerous, unstable and top-heavy condition of said outside tier, and of the fact that the same was in no way bound or tied to the remainder of the pile of which it was a part, and while plaintiff was so engaged in carrying lumber from said adjoining pile, and was ignorant of danger as above stated, the said outside tier, without warning to plaintiff and without his fault, toppled over and fell upon plaintiff, and broke and crushed the bones of his leg, ankle and foot, thereby causing plaintiff great physical pain and suffering and permanent injury.” The answer denies any negligence on defendant’s part, and pleads contributory negligence, negligence of a fellow-servant, and assumption of risk as defenses.

Upon the trial plaintiff offered evidence tending to prove that one Price was vice-principal of defendant in charge of the work of constructing the planing-mill; that plaintiff was injured while obeying specific instructions received from Price; that there were not any cross-strips or ties used in piling the lumber which fell; that it fell without fault of plaintiff; also evidence showing the particular circumstances attending the accident and the extent of plaintiff’s injury. Plaintiff then offered the evidence of certain lumber handlers engaged by the defendant at the time of the injury as follows:

Hoover: “If we have a large order, where we have to pile it up high, we use strips, cross-strips, and that binds the whole pile so it won’t fall down. * * * There was none of that lumber piled with strips between it. We were told once not to take too much time. Mr. Price told us that. * * * I would put strips on a big load going out. I had to put strips on to bind it. When I had a big pile I put strips on, one on top and one on the bottom. On the small piles I would put on enough to be safe of the strips. * * * The order that Mr. Price gave me was not to take any pains in the piling of it. * # * I believe we put strips on lumber that I hauled to the planing-mill on the first couple of loads that we hauled in there, and continued until Mr. Price came around there and told us not to. ’ ’

Apperson: “He [Price] told Mr. Baymond and I together to pile the lumber off, any way to get it off. It was not going to stay there forever. We started to use strips and he stopped us. I did not notice this pile in particular. * * * When we delivered at other places we stripped it but for Price we never did. If a pile was four feet high we would put in a strip.”

Plaintiff then rested. Defendant moved for a nonsuit on the following, among other grounds: “For the further reason that it has not beén shown, by evidence of any kind or character, that the defendant Largey Lumber Company was at any time guilty of any negligence of any kind or character.” This motion was overruled, and defendant introduced evidence in its behalf tending to show that it exercised reasonable care in piling the lumber.

It may be conceded that, unaided by any presumption, the evidence offered by plaintiff is insufficient to charge the defendant with negligence. But counsel for respondent invoke the doctrine of the maxim “lies ipsa loquitur,” and insist that this case as made by the plaintiff presents an instance wherein the presumption of defendant’s negligence arises from the proof of the accident. Of course, the general rule of law is that negligence is not inferable from the mere occurrence of the accident; but to this rule is- the well-understood exception that, where the thing which causes the injury is shown to be under the management and control of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have such management and control use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from the want of ordinary care by the defendant. (1 Shearmán & Redfield on Negligence, see. 59.) Under such circumstances proof of the happening of the event raises a presumption of the defendant’s negligence, and casts upon the defendant the burden of showing that ordinary care was exercised. This rule has- been invoked in numerous similar cases. (2 Labatt on Master and Servant, sec. 834; Solarz v. Manhattan Ry. Co., 8 Misc. Rep. 656, 29 N. Y. Supp. 1123; Green v. Banta, 48 N. Y. Super. Ct. 156, affirmed on appeal, 97 N. Y. 627; Guldseth v. Carlin, 19 App. Div. 588, 46 N. Y. Supp. 357; Stewart v. Ferguson, 164 N. Y. 553, 58 N. E. 662; Sackewitz v. American Biscuit Mfg. Co., 78 Mo. App. 144; Mulcairns v. Janesville, 67 Wis. 24, 29 N. W. 565; Armour v. Golkowska, 95 Ill. App. 492; Carroll v. Chicago etc. Ry. Co., 99 Wis. 399, 67 Am. St. Rep. 872, 75 N. W. 176; Winkelmann & Brown Drug Co. v. Colladay, 88 Md. 78, 40 Atl. 1078; Westland v. Gold Coin M. Co., 101 Fed. 59, 41 C. C. A. 193; 1 Thompson on Negligence, sec. 15.)

For the purpose of the motion it must be conceded that the evidence offered by the plaintiff proved that the defendant, through its vice-principal, Price, not only had actual charge and control of the piling of this lumber, but actually directed the manner in which it should be piled, and gave directions that no particular pains should be exercised and' that cross-strips or ties should not be employed. The evidence further shows that the plaintiff was directed by Price to go to the very place where he was injured, and it is self-evident that, if properly piled, the lumber would not have fallen of its own accord.

We think the doctrine of the maxim “Bes ipsa loquitur” is applicable to the facts of this case, and that the evidence offered by the plaintiff, aided by the presumption which this doctrine raises, made out a prima facie case to go to the jury, and the motion for nonsuit was properly denied. We do not think there is any merit in the other grounds of the motion.

But it is said that the danger to plaintiff from this pile of lumber was obvious and apparent, and that the plaintiff assumed the risk. Whether it was apparent to him or equally as apparent to bim as to Price, under the facts of this case, were questions for the jury. This subject has been before this court so recently, and so carefully considered, that a reference to the ease is sufficient to dispose of the contention now. (McCabe v. Montana Central Ry. Co., 30 Mont. 323, 76 Pac. 701.)

In Carlson v. Northwestern Tel. Exch. Co., 63 Minn. 428, 65 N. W. 914, it is said: “Where a large number of men are employed upon the same work, it is essential that reasonable orders regulating their conduct and assigning to them proper places in which to work, should be given. It is the duty and the right of the master to give orders and direct the places where his servants shall work. Their duty is instant and absolute obedience, unless it be obvious to them that such obedience will expose them to unusual dangers. Dispatch, discipline and the safety of person and property in the execution of work imperatively require that the master should order and the servant obey. It would be practically impossible to carry on a work of any magnitude on any other basis. A workman, when-ordered from one part of the work to another, cannot be allowed to stop, examine and experiment for himself, in order to ascertain if the place assigned to him is a safe one.”

There is some contention that Price was a fellow-servant with Hardesty; but under either rule announced by this court in Allen v. Bell, 32 Mont. 69, 79 Pac. 582, for determining this question, we think Price was clearly shown to be a vice-principal.

Objection is made to the court’s giving an instruction numbered 8, relative to the duty of the master to exercise ordinary care to provide for his servant a reasonably safe place in which to work. We do not approve of the language employed in this instruction, but this is not the objection urged by the appellant. Its criticism is that an instruction on the subject was inapplicable in this ease, for the reason that the plaintiff was engaged in making a place in which to work, and Shaw v. New Year Gold Min. Co., 31 Mont. 138, 77 Pac. 515, is cited in support of this plea. But the doctrine of that case we think is not applicable here. This plaintiff was directed by the defendant to work in a particular place outside of the building, and while executing such order was injured. The work of framing timbers and placing them in a building is not analogous to the work of extending a tunnel.

Instruction No. 1 is criticised, because it does not fully set forth the issues to be determined. The court was only attempting to define the issue in very general terms, and in any event appellant did not request an instruction setting forth the issues more fully.

(Submitted June 12, 1906. Decided June 22, 1906.)

There is some criticism made of instruction No. 7, but that instruction only attempted to limit plaintiff’s recovery to the amount claimed in his complaint.

Instructions 3, 4 and 5 state the rules of law as announced in sections 2660, 2661 and 2662 of the Civil Code.

Errors are also assigned upon the refusal of the court to give certain instructions requested by the defendant. No. 18 comments upon the evidence and would have been erroneous if given. Nos. 19 and 29 were properly refused. The rule announced in the Carlson Case above disposes of this contention. Nos. 22 and 23 are directly opposed to the doctrine announced by this court in the Allen-Bell and McCabe Cases, respectively, and No. 24 is fully covered by instructions 11, 12, 14 and 15, given by the court.

While the cross-examination of the witness Haines was probably with respect to an immaterial matter, it seems impossible that any injury could have resulted to defendant. We have examined the other assignments, but think they are without merit. The case seems to have been fairly submitted to the jury, and its verdict should not be disturbed.

The judgment and order denying defendant a. new trial are affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Milbubn concur.