Anderson v. Meier & Frank Co. ( 1913 )

Mr. Justice Burnett

delivered the opinion of the court.

1. Some months after the accident occurred, the defendant caused a photograph to be made of what witnesses said were not the same but similar boxes piled up practically as were those causing the injury and offered the picture in evidence at the trial. Over the exception of the defendant, the court excluded it on the ground that it was not shown to be an accurate reproduction of the situation at the time of the injury. Afterward, however, during the progress of the trial, as the bill of exception discloses, the jury wére escorted to the store of the defendant and viewed the premises, where they saw the pile of boxes at the place of the accident piled up as shown in the photograph. In other words, with their own eyes they saw the original of the picture offered in evidence. This, in our opinion, rendered harmless whatever error there may have been in excluding the picture, for the actual view of the jury of the precise situation disclosed by the photograph was certainly better testimony and better calculated to enlighten the jurors than the picture itself.

2. The plaintiff called two witnesses who stated that they had had considerable experience in storing groceries contained in boxes and bags and inquired of them what was the usual method and custom of piling up such merchandise, going into detail as to the kind of goods as described in the complaint. These witnesses testified about the ordinary way to stack up goods. The testimony sought to be elicited by these questions was objected to by the defendant on the ground that it is not a matter of expert testimony but is in the common knowledge of any ordinary person. It is the duty of a master to take ordinary care to provide a reasonably safe place in which his employees may pursue their labors. It is presumed that a person takes ordinary care of his own concerns. It would be competent, therefore, to inquire what was the ordinary custom in such cases as tending to enlighten the jury on the subject of what would be the usual degree of care to be exercised in such cases. It is said in subdivision 12, Section 727, L. O. L., that evidence may be given on the trial of “usage to explain the true character of an act, contract, or instrument, where such true character is not otherwise plain; but usage is never admissible except as a means of interpretation. ’ ’ It is not to be presumed that all of an ordinary jury were thoroughly conversant with the methods usually pursued in the handling of goods of the kind in question; and hence it would be permissible, as explanatory of the acts involved, to show what was the ordinary custom among men engaged in that business. Of course we could not say as a matter of law that the act of a defendant, either conforming to or disregarding the custom elicited by the testimony, would be negligent or careful, but such testimony goes to the jury as clarifying the situation so that they may be more able to determine whether or not ordinary care was used in the particular instance.

3. It is true that the witnesses in answer to these questions allowed their opinions to creep somewhat into their testimony, bnt no motion was made to strike ont these opinions, and hence we cannot regard the assignment of error on this point: Rush v. Oregon Power Co., 51 Or. 519 (95 Pac. 193); Pointer v. Klamath Falls Land Co., 59 Or. 438 (117 Pac. 605, Ann. Cas. 1913C, 1076); Richardson v. Klamath S. S. Co., 62 Or. 490 (126 Pac. 24).

4. Ponr instructions were tendered to the court to be given to the jury on behalf of the defendant, all turning upon the contention of the defendant that it is not enough to show that the piling of the boxes was defective, but that the plaintiff must go further and show that the defendant had notice of the defect, or by the exercise of ordinary care should have known of the same. From the excerpt already quoted from the answer, it appears that the defendant had piled up the boxes which fell upon the plaintiff. It thus avows a situation necessarily involving knowledge thereof. As affecting the safety of a place in which the plaintiff was required to work, if the defendant, as it says, had piled up the boxes, it must be held to have known of the defect in the structure, although it may have delegated the erection of the same to some other servant.

5. However, it is a well-settled rule that, in matters affecting the safety of the place in which to work, the master cannot escape liability by delegating that duty to another. The analysis of this pleading leads us to the conclusion that knowledge of the original defective condition of the pile of boxes is necessarily imputed to the defendant by its own statement, so that it was not requisite to make proof of it by the testimony of any witness. The bill of exceptions discloses that there was no testimony tending to show that the plaintiff had piled up the boxes or disclosing who actually performed that service; but the allegation of the answer itself fixes the responsibility and knowledge thereof irrevocably upon the defendant.

The judgment of the Circuit Court is affirmed.

Affirmed.

Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Ramsey concur.