Stevens v. Henningsen Produce Co. , 53 Mont. 306 ( 1917 )

MR. CHIEF JUSTICE BRANTRY

delivered the opinion of the court.

Action for damages for a personal injury suffered by plaintiff during the course of his employment by defendant. The trial in the district court resulted in a judgment in favor of the defendant after an order sustaining its motion for a nonsuit. Plaintiff has appealed from the judgment and an order denying his motion for a new trial.

The following narrative of facts is gathered from the complaint: On January 11, 1912, the defendant was conducting a warehouse and cold-storage business in the city of Butte. It occupied a brick building consisting of three stories and a basement. Besides stairways connecting the several floors, there was an elevator for conveying goods to and from them. The elevator was installed in a shaft and was moved by a cable and pulley. It was balanced by counterweights, which ascended and descended between two guides near the middle of the south side of the shaft. Plaintiff was in the employ of the defendant as superintendent of its business, and as such had charge of the building and defendant’s employees. A. P. Henningsen was its president. Discovery having been made that the building was on fire on the basement floor, Henningsen directed the plaintiff to save as many of the goods stored in the building as possible. Assisted by the other employees he proceeded to remove such of them as he could without danger to his assistants or himself. To accomplish this, they loaded the goods upon trucks and removed the loaded trucks by means of the elevator to the first or street floor, and thence to the street. When this work was begun on the basement floor, it was discovered that because of an obstruction in the pit or excavation at the bottom of the shaft, the deck would not descend to the level of the floor, or “land,” so that the trucks could be loaded upon it. Upon investigation this was found to be a piece of two by four timber standing on end at one side of the shaft. Seeing that this obstruction must at once be removed, the plaintiff ordered the elevator to be moved to the second floor and held there until he could effect the removal. The elevator was raised as directed. While plaintiff was reaching into the shaft to remove the timber, the elevator was moved upward by someone without warning, with the result that the counterweights descended and struck plaintiff, inflicting the injury complained of — a compound fracture of his right leg, besides bruises upon his back and head. The negligence charged is: ‘ ‘ That in the construction of said elevator shaft and particularly that portion of the same where the counterweights went up and down, according to the position of the said elevator, the said defendant carelessly and negligently failed and neglected to inclose that portion of said elevator in the basement on the south side where the said counterweights ascended and descended. * # # ” The defenses relied on were a denial of negligence by defendant, and affirmative pleas that plaintiff assumed the risk, and that he was injured by the negligence of his fellow-servants. The motion for nonsuit was made upon several grounds. As we view the evidence, however, though we assume that defendant was guilty of negligence in the particular alleged — which is by no means clearly established by the proof — the nonsuit was proper on the ground that plaintiff’s own evidence discloses a case of assumed risk.

[1] The rule is settled in this jurisdiction that this defense can be availed of only by special plea (Longpre v. Big Blackfoot Milling Co., 38 Mont. 99, 99 Pac. 131; Mosher v. Sutton's New Theater Co., 48 Mont. 137, 137 Pac. 534), and that the question whether the plaintiff did assume the risk is generally for the jury. An exception to this general rule is where the plaintiff’s own evidence furnishes a basis for the single inference that he assumed the risk. The burden is then upon him to exculpate himself or he cannot, recover, and this whether the defense is pleaded or not. (Longpre v. Big Blackfoot Milling Co., supra.) The exception is founded upon the principle that in order to recover for an alleged wrong of his master, the servant must make out a case which does not afford a substantial basis for the inference that he has exculpated the master by taking responsibility upon himself.

[2] The evidence establishes these facts: The fire was discovered about 2:30 o’clock in the afternoon. The plaintiff was ordered by Henningsen to get the employees together and remove the goods from the building. The plan adopted was to load them on trucks and lower or raise the trucks to the main or street floor in order to reach railroad cars standing on a siding used by tbe defendant. All goods had been removed, except those stored in the basement. It was then about 6 o ’clock. The building was constructed with double walls, leaving air spaces between. The fire had originated in one of these air spaces, and by the efforts of the firemen had been prevented from spreading to other parts of the building or to the goods. "When the rescuers began work in the basement, it was found that an obstruction in the elevator shaft prevented the proper placing of the deck for the loading of trucks upon it. This was made known to Henningsen by the plaintiff, both being then upon the street floor. The plaintiff testified as to what then occurred as follows: “I told him that a piece of timber or something had gotten underneath the elevator and they couldn’t load it up. He asked me, he says, ‘Well, can’t you get it fixed?’ Mr. Henningsen asked me what was the matter, and I told him there was something in the elevator pit, and that the elevator would not go down to the bottom to land, and we couldn’t get the goods on, and he said, ‘ Can’t you fix it ? ’ He said, ‘ Go down there. We have to get the goods out of the way. We don’t know what this fire is going to amount to.’ Now, I was just about the landing of the stairway, and I told him I could, and he made the remark, ‘It is a hell of a time for the elevator to get out of order.’ ” The plaintiff went immediately to the basement floor to get the elevator in order. The shaft was between six and seven feet square, and was built about corner posts. On the west it was open, so that one approaching from that direction could step from the basement floor into. the pit or sump, which was about sixteen inches in depth. At that time the pit contained several inches of water. On the east the shaft was boarded up, but there was a doorway opening into it. The floor of the basement on this side was higher than on the west side, so that the bottom of the pit was about thirty inches below its level. On the north the shaft was boarded up. On the south it was open except for the space occupied by the guides for the counterweights, which had their footings on the lip of the pit somewhat to the west of the center. Goods were piled on that side so near to the shaft that entrance could not be effected from that direction. There was a sixteen candle-power electric light so placed that it lighted the shaft pit sufficiently to enable one approaching from the west to see an obstruction in it. The piece of timber was found by plaintiff standing on end, and leaning against the lip of the pit on the east side in front of the door. It could have been reached easily and without any danger from the counterweights, by means of the door on the east side or by stepping into the pit. Instead of pursuing either of these courses, the plaintiff first called to those who were in charge of the elevator above to hold it until he gave the signal. Without waiting for a response he put his left foot on the west lip of the pit, his right upon the south between the guides, and leaned toward the east to reach the timber. While he was in that position,'someone — the evidence does not disclose who — moved the elevator upward with the result that plaintiff’s right leg was caught by the descending counterweights and injured as alleged. Plaintiff had been in the employ of the defendant about thirteen years, having worked for it as laborer and helper, and as traveling agent and superintendent. He had had experience as stationary engineer, had operated compressors, was familiar with machinery, and knew the mechanism of the elevator. He knew that when it was moved, the counterweights would move; fully realized that the course he was pursuing was perilous, and appreciated the fact that he might suffer injury if the elevator was moved. This is put beyond doubt by the fact that when he went to the shaft he ordered the elevator to be held until he gave the signal, and by his statement that he relied on the order thus given by him being obeyed. Evidently this order, if heard by the men above, was understood to mean that the elevator should not be lowered. However this may have been, under the circumstances the only conclusion permissible is that he deliberately took a chance that he would not be injured, for he did not claim that he was hurried or that his attention was distracted by the emergency of the fire, nor did he offer to explain why he pursued the course he did. The only inference possible is that he did it to avoid stepping into the water or the necessity of passing around to the east side of the elevator shaft. At the time plaintiff went down by the direction of Henningsen, neither knew what was the cause of the trouble. When he discovered it, being familiar with the operation of the elevator and having observed the conditions and circumstances confronting him at the moment, his knowledge of the danger was superior to that of Henningsen, and he thus became the exclusive judge as to the course he should pursue. He thus assumed the risk, and hence cannot charge his injury to the negligence of defendant, if it was negligent in failing to inclose or box in the counterweights. (Leary v. Anaconda C. Min. Co., 36 Mont. 157, 92 Pac. 477; Fotheringill v. Washoe Copper Co., 43 Mont. 485, 117 Pac. 86; Molt v. Northern Pac. Ry. Co., 44 Mont. 471, 120 Pac. 809; 26 Cyc. 1202; Bailey on Personal Injuries, sec. 459; 8 Thompson on Negligence, 4643.)

[3] Counsel insist that the evidence presents a ease of emergency in which the plaintiff was injured in an endeavor to save the property of his master, and cite and rely upon these cases: Da Rin v. Casualty Co., 41 Mont. 175, 137 Am. St. Rep. 709, 27 L. R. A. (n. s.) 1164, 108 Pac. 649; Bracey v. Northwestern Imp. Co., 41 Mont. 338, 137 Am. St. Rep. 738, 109 Pac. 706; Hollenback v. Stone & Webster E. Corp., 46 Mont. 559, 129 Pac. 1058, and Nelson v. Northern Pac. Ry. Co., 50 Mont. 516, 148 Pac. 388. They have- no application. In the first place, they deal altogether with the rule governing the defense of contributory negligence when a rescuer is injured in an attempt to save the life of another in the face of impending peril to the latter brought about by the negligence of the defendant, or to the case of an employee injured while endeavoring to save the property of his employer when there is imminent peril of its loss or destruction. In the second place, the evidence shows affirmatively that the plaintiff was not at the time of the accident confronted by impending peril of loss to defendant of its property moving him to pursue the course he did, but that he acted deliberately and without the impulse of momentary excitement.

Counsel challenge the propriety of several rulings of the trial court in excluding evidence. The contentions made in this behalf are without merit, for the double reason that most of the excluded evidence was subsequently admitted without objection, and that in view of the conclusions stated above the evidence excluded finally would not have removed the imputation to plaintiff that he assumed the risk.

The judgment and order are affirmed.

Affirmed.

Mr. Justice Sanner and Mr. 'Justice Holloway concur.