Vanyi v. Portland Flouring Mills Co.

Mr. Justice Bean

delivered the opinion of the court.

1. At the close of plaintiff’s evidence, defendant’s counsel moved the court for a nonsuit, and here contend that there was no evidence tending to show a defect in the chain in question or any negligence of defendant. It is urged that the evidence of Devero, in identification of the chain in evidence as the one with a defective link, used at a time prior to the accident, fails to show that the chain used when Vanyi was hurt was defective. From the very nature of the evidence pertaining to the chain it was apparent that no one could positively identify the same. If any one should attempt to do so, under the circumstances, with no distinguishing mark on the chain, such testimony would be entitled to but little credit. Nevertheless, Devero’s testimony tended to show that the chain in evidence was the one with a defective link, and that the attention of Church, defendant’s agent, had been called to such defect. His evidence indicated a broken link in one part of the long chain, of which the chain used was formerly a part. Mr. Labatt, in his work on Master and Servant, Section 138, on the subject of previous unsatisfactory operation of other instrumentalities of the same kind, says:

“It seems impossible to argue with any show of reason that evidence of this sort is to be wholly rejected, and its competency has been more than once recognized. Manifestly, it is a reasonable inference that, where several out of a number of appliances modeled upon the same pattern or a closely similar pattern fail to perform their functions properly, the master is put upon inquiry as to the suitability of all the others.”

It appears that the chain (Exhibit A) was introduced in evidence with scarcely any identification. Mr. Church did not explain what was done with the chain with the broken link, other than that it was thrown to one side. It does not appear that it was thrown into the river, or 'locked up, or that it was not left where the workmen *529 would naturally use it with the other two chains. Mr. Labatt also says, in Section 22:

“It is not sufficient discharge of the master’s duty that sufficient good material should be mingled with bad material in a common mass.”

2. Further, it was not purely a question of distinguishing one particular part of this chain from another that rendered Devero’s evidence pertinent. The proof fairly indicates that the 30-foot chain had been used in raising material of great weight, and had been subjected to severe strain, which was known to the agent of defendant in charge of this particular work. After a defective or broken link had been noticed in one part of this chain, regardless of which part, and the company, by its employees, was arranging an appliance, namely, the chain and chain block, for the plaintiff and his associates to work with, and under which they were to stand, while working under these circumstances, it became a question for the jury to determine from all the evidence whether or not reasonable care was' used in securing the head block with only one strand of the chain. The obligation to make a thorough examination for concealed defects is especially strong where an appliance has been injured in parts open to view, and there is strong probability that the same accident may have weakened it in other places. Labatt, Section 159, subd. “e.” The exercise of common prudence would require that, after a broken link had been observed in one part of the chain, the same should not be used and treated as a sound or perfect chain. The jury was informed by the evidence that in raising the same motor on a previous occasion the head block had been hooked into two or three strands of the chain, thereby doubling or trebling its strength. A master is chargeable with knowledge that organic matter will deteriorate; that certain- material will not support more than a certain weight; that ropes and cables will *530 break if subjected to certain tensional strains; and that certain kinds of strains crystalize iron. Labaft, Master and Servant, Section 141; Honifius v. Chambersburg Engineering Co., 196 Pa. 47 ( 46 Atl. 259 ); Baker v. Allegheny Valley R. R. Co., 95 Pa. 211 ( 40 Am. Rep. 634 ) ; Mulvey v. R. I. Locomotive Works, 14 R. I. 204.

Under these conditions, the court could not say there was no evidence from which the jury could reasonably infer that the chain used at the time of the injury was, to the knowledge of defendant, defective and unsafe. The question was a proper one for submission to the jury. Manning v. Portland Ship Building Co., 52 Or. 101, 103 ( 96 Pac. 545 ) ; Labatt, Master and Servant, Sections 835, 836. If there is any evidence, however slight, fairly susceptible of an inference or presumption tending to establish plaintiff’s right to recover, under the theory of his complaint, a nonsuit should be denied. Herbert v. Dufur, 23 Or. 462 ( 32 Pac. 302 ); Chaperon v. Electric Co., 41 Or. 39, 45 ( 67 Pac. 928 ) ; Jackson v. Sumpter Valley Ry. Co., 50 Or. 455 ( 93 Pac. 356 ) ; Sullivan v. Wakefield, 59 Or. 401 ( 117 Pac. 311 ) ; Painton v. North. Central Ry. Co., 83 N. Y. 7 .

3. It is the positive duty of a master to furnish his servants with reasonably safe machinery, instrumentali-' ties, and appliances to work with, and by the use of ordinary care and diligence in making repairs to keep them in a reasonably safe condition, commensurate with the use for which they are designed, and he is liable for the negligent performance of this duty, whether he undertakes to perform it himself or intrusts it to another. Allen v. Standard Box & Lumber Co., 53 Or. 10, 15 ( 96 Pac. 1109 : 97 Pac. 555 : 98 Pac. 509 ) ; 26 Cyc. 1136: 12 Am. & Eng. Enc. Law (2 ed.) 959.

4. The plaintiff is presumed to have assumed ordinary risks, but not such as defendant might have avoided by ordinary care. Manning v. Portland Ship Building Co., *531 52 Or. 101, 103 ( 96 Pac. 545 ). Mr. Justice Moore, in the case of Patty v. Salem Flouring Mills Co., 53 Or. 350, 357 ( 98 Pac. 521 ), clearly expressed the rule governing a nonsuit, as follows:

“The degree of proof required of a plaintiff, who, in order to obtain a favorable judgment, must sustain the material issues involved, is generally classed as a probability. If, when he rests his case, the facts which were incumbent upon him to establish appear from the evidence as merely possible, the court, upon motion of the adverse party, should grant a judgment of nonsuit for failure to prove a material issue. When, however, after the plaintiff rests his case, it appears from his evidence that the facts devolving upon him to make manifest are quite probable, his cause has passed the danger point of a nonsuit.”

We think the evidence in this case on the part of plaintiff clearly comes within the rule requiring the same to be submitted to the jury.

5. The plaintiff is not bound to prove more than enough to raise a fair presumption of negligence on the part of the defendant and of resulting injury to himself. Having done this, he is entitled to recover, unless the defendant produces evidence sufficient to rebut this presumption. If the facts proved make it probable that the defendant violated its duty, it is for the jury to decide whether it did so or not. It is well settled that evidence of negligence need not be direct and positive. The burden of proof is satisfied by the production of circumstantial evidence. Shearman & Red., Negligence (5 ed.) Section 58; Labatt, Section 835.

6. The defendant, however, contends that Church, while attaching the head block, and in failing to hook the same to but one strand of the chain, was a fellow servant of plaintiff, and was not the vice principal acting for defendant, and that if he was negligent in so secur *532 ing the head block, assuming the chain to be a good sound one, having no obvious defects and adequate for the work contemplated, the defendant is not liable for such negligence. It was said by Mr. Justice Bean in Mast v. Kern, 34 Or. 247, 250 ( 54 Pac. 950 , 951: 75 Am. St. Rep. 580 ) :

“The rule, and the one now unquestionably established and supported by the great weight of authority, both in this country and in England, is that the liability of the master depends upon the character of the act in the performance of which the injury arises, and not the grade or rank of the negligent employee. If the act is one pertaining to the duty the master owes to his servant, he is responsible for the- manner of its performance, without regard to the rank of the servant' or employee to whom it is entrusted; but, if it is one pertaining only to the duty of an operative, the employee performing it is a fellow servant with his co-laborers, whatever his rank, for whose negligence the master is not liable.”

In Baltimore & O. R. Co. v. Baugh, 149 U. S. 368, 384 (13 Sup. Ct. 914, 920: 37 L. Ed. 772 ), Mr. Justice Brewer, in the opinion, in an exhaustive discussion of this question, said:

“Prima facie, all who enter into the employ of a single master are engaged in a common service, and are fellow servants, and some other line of demarcation than that of control must exist to destroy the relation of fellow servants. * * Of course, some places of work and some kinds of machinery are more dangerous than others, but that is something which inheres in the thing itself, which is a matter of necessity, and cannot be obviated. But within such limits the master who provides the place, the tools, and the machinery owes a positive duty to his employee in respect thereto. That positive duty does not go to the extent of a guaranty of safety, but it does require that reasonable precautions be taken to *533 secure safety, and it matters not to the employee by whom that safety is secured, or the reasonable precautions therefor taken. * * If the act is one done in the discharge of some positive duty of the master to the servant, then negligence in the act is the negligence of the master; but, if it be not one in the discharge of such positive duty, then there should be some personal wrong on the part of the employer before he is held liable therefor.”

When the selection of materials or the adjustment or construction of appliances to suit them to the work in hand is such as is within .the scope of the employment, and may be properly left to the workmen in their capacity as such, and is so left to them by the master, he is relieved from responsibility for their negligence, and whether a particular case falls within the duty of the master or that of the employee becomes a mixed question of law and fact, to be submitted to the jury as to the fact under legal rules; its determination depending upon the facts of the case. Robinson v. Taku Fishing Co., 42 Or. 537 541 ( 71 Pac. 790 ) ; Donnelly v. Granite Co., 90 Me. 110 ( 37 Atl. 874 ) ; Great Northern Ry. Co. v. McLaughlin, 70 Fed. 669 ( 17 C. C. A. 330 ). Defendant is liable for injuries occasioned by defects in the sling chain used to fasten the head block, if by inspection such defects are discernible, or if the master knew, or by the exercise of reasonable diligence .ought to have known, thereof. Bailey v. Cascade Timber Co., 32 Wash. 319 ( 73 Pac. 385 ) ; Hall v. Marshutz & Cantrell, 138 Cal. 522 ( 71 Pac. 692 ) ; Fraser & Chalmers v. Collier, 75 Ill. App. 194 ; McNeill v. The Para (D. C.), 56 Fed. 241 . The knowledge of Church, the foreman, regarding the defective chain, and the manner in which the head block was attached, was the knowledge of his master, the defendant. Rogers v. Portland Lumber Co., 54 Or. 387 ( 102 Pac. 601 : 103 Pac. 514 ). From all the evidence in the case, *534 the jury could reasonably find that the act of Church in adjusting the head block, from its very nature, was the act of the company. 26 Cyc. 1325. Under certain circumstances, the adjustment of the block and tackle might be as much the duty of the defendant as the hanging of the shafting in the mill after its reconstruction. It was not necessarily, or as a matter of law, a part of the duty of Vanyi or his fellow laborers to furnish or adjust this instrumentality. It mattered not to him to whom the duty of securing the safety thereof was delegated, whether to Foreman Church, or to someone else. He had the right to look to his master to see that the place in which he was to work and the appliances with which he was to perform his duty were in a reasonably safe condition. If the alleged negligence of defendant had consisted in some act of Church, or the other employees, in the mere operation of the block and tackle, after the same had been safely secured, it would have been a different proposition.

There was no reversible error in overruling the motion for a nonsuit.

7. We have considered all the evidence in determining the motion for a nonsuit, for the reason that it is a well-settled rule in this State that although plaintiff, at the time of resting, may have failed to offer proof sufficient to entitle the cause to be submitted to the jury, a ruling denying such motion will not be disturbed, if the omission is supplied by the subsequent introduction of evidence. Crosby v. Portland Ry. Co., 53 Or. 496 ( 100 Pac. 300 : 101 Pac. 204 ) ; Trickey v. Clark, 50 Or. 516, 519 ( 93 Pac. 457 ).

Objection is made by counsel for defendant to certain instructions given by the court to the jury. These objections are based principally upon the want of evidence, a question which we have already considered.

From a careful perusal of the instructions taken as an entirety, we think the case was fairly submitted to the *535 jury, and that the instructions were as favorable to the defendants as could reasonably be expected. The jury found a verdict adverse to the defendant. There was testimony to support that verdict. Under the provisions of Section 8, Article VII, of the Constitution, it should not be disturbed.

Finding no prejudicial error in the record, the judgment of the lower court is affirmed. Affirmed.