Rook v. Schultz

BURNETT, C. J.

1. For the purposes of this case we take the defendants at their own classification of the plaintiff as a volunteer, assisting their employee who was in charge of the vehicle in the distribution of milk which the defendants were selling. The case presented is one of the infliction of an injury by the management of the defendants’ vehicle. As to the responsibility of the defendants, it is settled in West v. Kern, 88 Or. 247 ( 171 Pac. 413, 1050 , L. R. A. 1917D, 920), that where a plaintiff proves that the vehicle which caused his injury belonged to the defendant, a prima facie case is made, since the jury may infer that at the time of the accident the vehicle was being used for the defendants’ purposes. The presumption mentioned is here a platitude, for the ownership of the vehicle and its management by the servant of the defendants are admitted in the pleadings. It may be conceded, without deciding, that a volunteer takes the instrumentality of the services in which he engages, as he finds them, and the owner is not bound as to his own servant to furnish a reasonably safe place in which to work, and reasonably safe appliances for the service. But the condition of the appliance and the manner of its operation are two different things. The issue here is about the latter of this twain.

2. "What, then, was the duty of the defendants towards the volunteer? It is thus stated in 18 R. C. L., page 579:

“But while a volunteer may not recover on the basis of service, he yet may be entitled to the exercise of that degree of care owed to persons rightfully on the premises of the employer, and may found his right of recovery on the general principles of negligence.”

*486 The doctrine is thus announced in Evarts v. St. Paul etc. Ry. Co., 56 Minn. 141 ( 57 N. W. 459 , 45 Am. St. Rep. 460 , 22 L. R. A. 663)

“But if, after discovering that such volunteer has placed himself in a position of danger, even through his own negligence, the servants fail to exercise reasonable care to avert the danger, the master will be liable. This liability does not rest on any contract obligation, but on the general duty not to inflict a wanton or willful injury on another. As respects this duty, a volunteer cannot occupy a less favorable position than a trespasser.”

It is also said in Cerrano v. Portland Ry., L. & P. Co., 62 Or. 421, 427 ( 126 Pac. 37 , 9 Negligence & Compensation Cases, Ann. 634):

“It is a culpable wrong to hurt one who has placed himself in a position of danger even negligently, if the injury can be avoided by the exercise of ordinary care, when the peril becomes apparent to the party conducting the instrument of danger.”

3, 4. The question of negligence is one of fact: Palmer v. Portland Ry., L. & P. Co., 56 Or. 262 ( 108 Pac. 211 , 59 Am. & Eng. Ry. Cas. (N. S.) 68). The driver in charge of the vehicle, the alter ego of the defendants, without controversy knew that the plaintiff was riding on the running-board and that he was assisting in delivering the milk, in doing which he held on with one hand and reached for milk bottles with the other. In substance, the charge of negligence is that the truck was operated at a high and dangerous rate of speed while the plaintiff was on the running-board, and that it made a sudden turn from one street into a cross-street without warning to the plaintiff of the driver’s intention so to do, with the result that the plaintiff was thrown off as by centrifugal force. Whether this was the ordinary care due to anyone in the situation of the plaintiff, *487 and whether that situation was one of danger known to the agent of the defendant in time to avert the peril, were questions of fact proper to be submitted to the jury. The instruction complained of is not at variance with the principles announced. The judgment is affirmed. Affirmed.

McBride, Bean and Harris, JJ., concur.