Cotton v. Osterberg , 88 Mont. 383 ( 1930 )

In the consideration of the doctrine of assumption of risk asserted by defendant to be involved herein, it must be borne in mind that the injuries sustained by the plaintiff were inflicted upon him by defendant's machinery while plaintiff was carrying out the express directions of defendant as to the method of handling the machinery in doing the work. Also it must be remembered that the method of doing the work was unsafe and known by the defendant, from actual experience, to be unsafe, but the danger was latent, unknown to plaintiff, not of such character as to be apparent to a person of ordinary intelligence, or apparent to anyone, and plaintiff, by the refusal of defendant to furnish the proper tools and appliances, was prevented from following any method other than that directed by defendant.

While a master may conduct his business in his own way, the law nevertheless imposes the duty upon him to exercise reasonable care for the safety of his employees, and if the master's method is so far faulty as to be negligence to pursue it, and if the pursuit of that method results proximately in injury to the servant, the master is liable. (Surman v. Cruse, 57 Mont. 253,187 P. 890; Verlinda v. Stone Webster Eng. Corp.,44 Mont. 223, 119 P. 573; Stewart v. Stone Webster Eng.Corp., 44 Mont. 160, 119 P. 568; Kreigh v. Westinghouse,C.K. Co., 214 U.S. 249, 53 L. Ed. 984, 29 Sup. Ct. Rep. 619;Choctaw O. G.R.R. Co. v. McDade, 191 U.S. 64, 48 L. Ed. 96,24 Sup. Ct. Rep. 24; Keast v. Santa Ysabel G.M. Co., 136 Cal. 256,68 P. 771; McVay v. Mannheimer Bros., 113 Minn. 225,129 N.W. 371; Bradford v. English, 190 N.C. 742,130 S.E. 705; Gaither v. E.H. Clement Co., 183 N.C. 450, 111 S.E. 782;Hendrickson v. Continental Fibre Co., 3 W.W. Harr. (33 Del.) 564, 140 A. 659; Chesapeake O.R. Co. v. Russo, (Ind.App.) 163 N.E. 283; Millett v. Maine Cent. Ry. Co., 128 Me. 314,146 A. 903; Galvin v. Brown McCabe, 53 Or. 598,101 P. 671.)

In some of the above cases machinery in good repair and a general method of doing the work were involved. In the case at bar the machinery furnished plaintiff was defective and a specific method required by defendant to be used to aid the defective machinery in doing the work are involved. The master did not defend, in those cases, as here, on the ground that the method used was unsafe, and known by him to be unsafe. If the employer has knowledge or information showing that the particular employment is from extraneous causes known to him, hazardous or dangerous to a degree beyond that which it fairly imports or is understood by the employee to be, he is bound to inform the latter of the fact or put him in possession of such information. (Stewart v. Stone Webster Eng. Corp., supra; Berg v. Boston Mont. C.C. S.M. Co., 12 Mont. 212,29 P. 545; Kelley v. Cable Co., 7 Mont. 70, 14 P. 633;Coleman v. Perry, 28 Mont. 1, 72 P. 42; Hendrickson v.Continental Fibre Co., supra; Free v. Home Tel. Co.,65 Ind. App. 9, 116 N.E. 600; Reynolds v. Maine Mfg. Co.,81 N.H. 421, 128 A. 329; Galvin v. Brown McCabe, 53 Or. 598,101 P. 671.)

No evidence is in the record from which may be drawn any inference that plaintiff, in pursuing the master's method, failed to exercise reasonable care. Nor is there any evidence from which the conclusion that plaintiff knew and appreciated the danger may be arrived at as a matter of law. The evidence is that he did not know and did not appreciate such danger. This evidence is undisputed. From that fact the trial court in its order appears to have concluded that only a question of law was presented and that the law says plaintiff assumed the risk. The only logical inference is that the undisputed evidence tended to prove the fact that plaintiff did not assume the risk of being injured by reason of plaintiff's negligence. Whether under the circumstances the danger to plaintiff was obvious and apparent, and therefore he assumed the risk, was a question for the jury. (Hardesty v.Largey Lumber Co., 34 Mont. 151, 86 P. 29.) Before plaintiff could be held to have assumed the risk as a matter of law or otherwise, it must be made to appear by evidence that he knew of the danger and knew and appreciated the risk resulting therefrom. (Boyd v. Great Northern Ry. Co., 84 Mont. 84, 274 P. 293;Sorenson v. Northern P. Ry. Co., 53 Mont. 268,163 P. 560; Grant v. Nihill, 64 Mont. 420, 210 P. 914.)

If it be asserted by defendant that plaintiff, assisted by his brother, without ill effects, had lifted the plows several times before he was injured and must be deemed to have assumed the risk when he attempted to lift them on the occasion of the injury, a question of fact for the determination of the jury is at once apparent, to solve which all the facts and circumstances proved and all the logical inferences from them must be taken into consideration. (Stewart v. Pittsburg M.Copper Co., 42 Mont. 200, 111 P. 723.) Following the instructions of his employer and relying on the experience and good faith of the master, the plaintiff at no time assumed the risk of injury. (Titus v. Anaconda C. Min. Co., 47 Mont. 583,133 P. 677.)

Irrespective of how long the plaintiff had done the work by the method prescribed by his employer, the question always remains: Did he know the danger and appreciate the risk therefrom? (Kinsel v.North Butte Min. Co., 44 Mont. 445, 120 P. 797; Galvin v.Brown McCabe, 53 Or. 598, 101 P. 671.) If the evidence furnishes a basis for the single inference that plaintiff assumed the risk of injury, he cannot recover. (Stevens v. Henningsen Produce Co., 53 Mont. 306,163 P. 470.) What do we mean by assumption of risk? "An employer is not bound to indemnify his employee for losses suffered by the latter in consequence of the ordinary risks of the business in which he is employed." (Sec. 7758, Rev. Codes 1921; Hardesty v. LargeyLumber Co., 34 Mont. 151, 86 P. 29.)

"He who consents to an act is not wronged by it." (Sec. 8744, Rev. Codes 1921.) The employee assumes extraordinary risks, and risks arising from the negligence of the master, where he knows and appreciates them. (Grant v. Nihill, 64 Mont. 420,210 P. 914; Matson v. Hines, 63 Mont. 214, 207 P. 474.) The exception to the rule is, when the servant is of immature years or is inexperienced in the particular work. (Boyd v. GreatNorthern Ry. Co., 84 Mont. 84, 274 P. 293.)

What is the effect of defendant's telling plaintiff to lift the plow? This is advice, only, but assume the strongest case possible. Call it an order. It has been said, "That the employee acts under the immediate order of a superior" does not alter the rule. (Worlds v. Georgia Ry. Co., 99 Ga. 283, 25 S.E. 646;Matson v. Hines, supra.)

Plaintiff was twenty-five years old and had been around tractors and plows for years. There is nothing to show that the beams on that particular plow were heavier than the beams of other plows. He asked for a jack before he went to work, because he anticipated there might be heavy lifting. There could be no other reason. He worked with the plow several days. He knew the self-lift was broken; he knew the field was rocky; he discovered that the levers were worn. He could judge the weight of the beam — 350 or 400 pounds. Why did he knock off the bolts the first time, instead of lifting the beam? Was it not because he thought the beam too heavy? Let us imagine that nothing was obvious, that he knew nothing about weights, nothing about his own capacity, nothing about possible danger and relied wholly on defendant. These concessions fly in the teeth of every fact, every inference, every probability; nevertheless, for the purposes of the argument, we will make them. Once he has lifted, however, the situation is entirely changed. Defendant could know the weight of the beam; he could only estimate the lifting capacity of plaintiff and his brother. The plaintiff now knows the weight of the beam; he now knows what he and his brother can lift; he now knows, better than anyone else, whether they should continue lifting the beams; as to these things he is the most experienced man in the world.

Is it possible for any sane man to lift the same beams with the same assistance, over a period of five or six weeks, some eight or nine and thirty times, each time the weight being as heavy as he can lift, and not know what he is doing and that there may be danger from strain? Can it possibly be said that he has not assumed the risk of that danger? The answer must be in the negative. This action was instituted by plaintiff to recover damages from defendant for personal injuries alleged to have been sustained by him while in the employ of defendant.

It appears that on April 18, 1927, plaintiff and his brother entered into an oral agreement with defendant to break 400 acres of land, defendant to furnish a gas tractor and a four-bottom Sattley plow and keep the same in repair, all necessary tools, equipment, gas and oil. Pursuant to the agreement, defendant turned over to plaintiff and his brother a tractor and plow, and they began work. Only three of the four bottoms were provided with lays. The plow was of Case-Sattley make, independent beam; that is, each beam is raised and lowered by its own lever. There were four beams and, consequently, four levers. Each beam with lay weighed 350 to 400 pounds. To lower the lay into the ground, the lever is pulled back; to raise it the lever is pushed forward. Soon after they started plowing it was found that the levers were worn and would not raise the beams high enough above the ground to permit the removal of the lays to be sharpened. When the lays became dull, plaintiff knocked off the heads of the bolts and removed the lays, took them to town, where they were sharpened. Plaintiff asked defendant for a jack or bar to be used in lifting the beams high enough to remove the lays. Defendant told him to lift the plows up and put a block of wood under them. Subsequently in removing the lays a block of wood was placed near a beam; plaintiff and his brother lifted the beam about six inches from the ground and swung it a little to the side until it rested on the block. The lay was removed, and the beam lifted off the block and on to the ground. The lays, after being sharpened, were replaced in the same manner of operation. Thus for approximately six weeks the work of changing lays was carried on. Plaintiff and his brother had lifted the beams approximately forty times. During the last change of the lays plaintiff felt a sharp pain in the abdomen and later observed a swelling in the groin. An examination by a physician disclosed a rupture.

Plaintiff was 25 years of age at the time of the injury. He was raised on a farm, and for many years had worked with plows, tractors and other farm machinery, but had never worked with a Sattley plow. He had done ordinary lifting around the farm.

At the close of plaintiff's case, defendant's motion for nonsuit was granted and judgment duly entered, from which plaintiff appeals.

We conceive the determinative question to be: Does the testimony show that plaintiff assumed the risk of the injury which he sustained?

The rule obtains in this jurisdiction in cases of this[1, 2] character — "strain cases" — that the employee is the best judge of his own muscular capacity, and the risk is upon him not to overtax it. An exception to the rule exists when the employee is of immature years or is inexperienced in the particular work at which he is injured. (Boyd v. GreatNorthern Ry. Co., 84 Mont. 84, 274 P. 293; Sorenson v.Northern Pacific Ry. Co., 53 Mont. 268, 163 P. 560; Matson v. Hines, 63 Mont. 214, 207 P. 474.) Does the testimony bring plaintiff within the exception? We think not. As we have pointed out above, plaintiff was a man 25 years of age; he had had many years of experience in handling tractors and plows, although he had never used a Sattley plow prior to his employment by defendant; during the course of the employment, extending over a period of six weeks, he had, with the assistance of his brother, lifted the plows approximately forty times; he knew that "it was pretty heavy lifting; it was about all I would want to lift, and that was so every time I lifted it." Under such circumstances it is clear that plaintiff was the best judge of his own capacity, and, in proceeding to change the lays as he did, he assumed the risk of overtaxing himself and cannot recover.

It is argued by counsel for plaintiff that whether plaintiff[3] assumed the risk was a question of fact for the determination of the jury. Generally, the question whether or not the servant did in fact assume the risk is for the jury to determine; this is true where the evidence is in such a condition that reasonable, fair-minded men might draw different conclusions from it, but when it furnishes ground for but one inference it presents a question of law for the determination of the court. (Boyd v. Great Northern Ry. Co., supra; Monson v. La France Copper Co., 43 Mont. 65, 114 P. 778, 779.) Here, reasonable, fair-minded men could draw but one conclusion from plaintiff's evidence, and that is that plaintiff, the best judge of his muscular capacity, overtaxed his strength, and it follows, under the rule above adverted to as obtaining in this jurisdiction, that he assumed the risk incident to his action — a matter of law addressed to the court for its decision.

The case of Boyd v. Great Northern Ry. Co., supra, relied upon by plaintiff, is clearly distinguishable. In that case plaintiff, a farmer, had been employed by defendant for a period of but four days prior to the date of the injury; he was injured while assisting another employee in carrying a piece of angle iron; he had no knowledge of its weight, and had never at any time lifted or carried irons of that type, and did not know that it was too heavy for two men to lift. We held that, under such conditions, the question of assumption of risk was one for the jury. Here, on the other hand, the evidence clearly shows that plaintiff was experienced, having lifted the plow beams forty times, extending over a period of six weeks; manifestly, under such circumstances, he was the best judge of his own muscular capacity, and the risk was upon him not to overtax it, and the question was one of law to be determined by the court.

Counsel contend that the trial court adopted an erroneous[4] theory in sustaining defendant's motion for nonsuit. Whether this be correct or not is of no importance, since the correct conclusion was reached; the doctrine of "wrong reason, right conclusion," applies. (Roecher v. Commercial Nat. Bank,87 Mont. 570, 289 P. 388; Whitcomb v. Beyerlein, 84 Mont. 470,276 P. 430; State ex rel. Public Service Com. v. GreatNorthern Utilities Co., 86 Mont. 442, 284 P. 772.)

The conclusion we have reached makes a consideration of other questions argued unnecessary.

For the reasons given the judgment is affirmed.

MR. CHIEF JUSTICE CALLAWAY and MR. JUSTICE ANGSTMAN concur.

ASSOCIATE JUSTICE MATTHEWS and GALEN, being absent, did not hear the argument and take no part in the foregoing decision.