Miami Quarry Co. v. Seaborg Packing Co.

MoCOURT, J.

— The first question presented by this appeal arises upon the refusal of the court (a) to grant a nonsuit, and (b) to direct a verdict in favor of the defendant, in response to motions seasonably made by defendant therefor.

Defendant contends that the omissions of which plaintiff complains were not the proximate cause of *370 the injury for which plaintiff seeks damage. In support of this contention, defendant argues that the injury complained of could not have been foreseen or reasonably anticipated by a person of ordinary foresight and prudence, happening as it did, after the barge had floated out to sea without striking the jetty, and after it had been cast upon the beach south thereof; that a reasonably prudent man could not foresee that the action of the wind and waves, in connection with the eddy south of the jetty, would drive the barge, or a section thereof, in a direction opposite to the ocean currents and against the jetty; and that the rough sea and the eddy created by the jetty constituted an intervening cause and the proximate cause of plaintiff’s injury and resulting damage.

1. A widely quoted definition of proximate cause is the following:

“The proximate cause of an injury is that cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred”: 22 R. C. L. 110.

2. It was the duty of the defendant to exercise reasonable care to secure its barge to meet conditions that might naturally be expected, such as high tides, changes of tides and tempestuous weather, rendering the barge liable to float and collide with other craft or structures in its course: 11 Corpus Juris, 1095, 1098, and notes. There was evidence that defendant did not fully dicharge this duty.

3. Ordinarily the question of whether a particular act was the proximate cause of the injury complained of is one for decision by the jury, and it is only where the facts are such that all reasonable men must draw the same conclusion from them, that the question of *371 proximate cause becomes one of law for tbe court: Hartvig v. N. P. L. Co., 19 Or. 522, 525 ( 25 Pac. 358 ); Wallace v. Suburban Ry. Co., 26 Or. 174 ( 37 Pac. 497 , 25 L. R. A. 663); 22 R. C. L. 148; Elliff v. Oregon R. & N. Co., 53 Or. 66 ( 99 Pac. 76 ); Palmer v. Portland Ry., L. & P. Co., 56 Or. 262, 268 ( 108 Pac. 211 ); Hartford Fire Ins. Co. v. Central R. R. Co., 74 Or. 144 ( 144 Pac. 417 ); 22 R. C. L. 149.

“Tbe principle is well settled tbat a wrongdoer is liable for tbe injury wbicb resulted as tbe natural and probable consequence of bis wrongful act, of wbicb be ought to bave foreseen in tbe light of surrounding circumstances. And as tbe court said in Ransier v. Minneapolis etc. Ry. Co., 32 Minn. 334 [ 20 N. W. 332 ] : ‘Whether tbe injury in a particular case was such natural and proximate result of tbe wrong complained of is ordinarily for tbe decision of tbe jury.’ Reiper v. Nicols, 31 Hun (N. Y.), 495. It is their province to look at the facts as they transpired and ascertain whether they are naturally and probably connected in ordinary sequence with tbe prime cause, or disconnected by some intervening agency affecting its operation.” Hartvig v. N. P. L. Co., 19 Or. 522, 525 ( 25 Pac. 358 ).

4. In order to constitute a particular act tbe proximate cause of tbe injury, it is not essential tbat tbe precise injury for wbicb recovery is sought should bave been foreseen; it is sufficient if tbe defendant could bave reasonably anticipated tbat some injury might result from tbe omission of wbicb complaint is made: 22 R. C. L. 125, 126.

5. One is not liable for a negligent act where an independent, efficient cause tbat tbe wrongdoer, in tbe exercise of reasonable diligence, could not bave foreseen, intervenes and produces an injury tbat *372 would not have resulted in the absence of such intervening cause: 22 R. C. L. 132.

6. But usual and expected conditions of weather and the natural and ordinary action of the forces of wind and water, operating on a negligent act, will not ordinarily constitute an independent, efficient intervening cause, which will supersede the original wrongful act, so as to make it the remote and not the proximate cause of the injury: 22 R. C. L. 126, 140.

“The ordinary conditions or forces of nature, such as ordinary wind, cold, heat, and the like, that are usual at the time and place and under the circumstances, and that reasonably should have been expected or foreseen as probable to occur, are not, in general, independent, efficient causes, when they affect or operate on a negligent act or omission in causing a result. Those who are negligent are held in law to know the usual effect of ordinary natural conditions and forpes on a negligent act or omission, and to have contemplated the appearance and the effect of such' conditions and forces on their negligence or on its proximate results, and to be liable in damages for the natural and probable proximate results of the negligence”: 22 R. C. L. 140..

Many authoritative and approved definitions of proximate cause, as that term is understood in the law of negligence, are quoted in the cases of Brown v. Oregon Wash. R. & N. Co., 63 Or, 396, 403 ( 128 Pac. 38 ); Chambers v. Everding & Farrell, 71 Or. 521 , 531—539 ( 136 Pac. 885 , 143 Pac. 616 ).

A valuable guide in determining when a particular act or omission is the proximate cause of an alleged injury is set forth in the opinion in the case of Salmi v. Columbia & N. R. R. Co., 75 Or. 200 ( 146 Pac. 819 , L. R. A. 1915D, 834).

Mr. Justice Burnett, speaking for the court, said:

*373 “It is a basic principle that, if the canse set in motion by the defendant operates continnonsly and directly upon another agency which as a necessary consequence affects a still different force by which injury is inflicted, the author of the initial cause is responsible for the final result. The difficulty lies in the application of this fundamental doctrine. The authorities are' apparently in hopeless conflict on this question, but it is believed that proper discrimination will reconcile them in this manner. If, under all the circumstances in the exercise of ordinary care, a person can discern that his act will naturally and probably result in harm of some kind to another, but not necessarily foreseen as to the exact form of injury, the former is liable in damages for the ensuing casualty. On the contrary, if no harmful result can reasonably be expected, or if there is no natural connection between the act of the defendant and the injury alleged, no action will lie.”

7. It was manifest that injury would probably result to craft or structures in Taquina Bay in the event defendant’s barge was permitted to leave its mooring and float or be carried down the bay, and if the barge floated and was carried down the bay on account of the failure of the defendant to take reasonable precautions to prevent the same, defendant was liable for any injury caused thereby and which was connected in ordinary sequence with its negligent acts or omissions, disconnected with any responsible intervening cause; the action of the waves and the flow of the tide would not be such an intervening cause, nor would they be changed into such an intervening cause by the fact that the barge did not strike the jetty on its way out of the bay, but did so thereafter and by operation of the waves and tide upon the eddy to the south of the jetty. Defendant was bound to anticipate that the barge, if permitted to *374 float unrestrained and uncontrolled, would probably do some damage to the property of others, and it cannot escape liability because that injury was produced by movements of the barge that defendant did not or could not foresee.

The Circuit Court, therefore, was not in error in submitting the question of defendant’s negligence to the jury and also the question of whether such negligence was the proximate cause of the injury to plaintiff.

Defendant advances the further contention that the undisputed evidence showed that its independent-contractor was guilty of the omissions which plaintiff claims were the ^proximate cause of his damages.

8. The operator of a tug engaged in a towing contract is ordinarily held to be an independent contractor: Woodard v. A. F. Coats Lumber Co., 97 Or. 302 ( 191 Pac. 668 ); but he is not such independent contractor unless made so by the terms of the towing contract, and then only as to the work embraced in the contract and as to acts done while the subject matter is under his control.

The contract of towing the barge from Astoria to Gold Beach came to an end when the captain of the tug beached, anchored and moored the barge in Yaquina Bay and notified defendant of his action.

9. Moreover, there was no evidence showing that the master of the tug was negligent in mooring the barge. After the barge was left in Yaquina Bay, and the original contract of towing was terminated, defendant took possession of the barge and removed everything of value from it, including its anchor, and became responsible for its secure mooring. Defend *375 ant after taking charge of the barge, tied it with three light lines to piles on the shore.

10. Upon leaving the barge, defendant engaged one Z. C. Copeland to take the barge from the place where it was beached to the “gridiron,” but Copeland abandoned the undertaking without materially changing the position of the barge, and upon ceasing the effort to carry out his employment, Copeland left the barge moored substantially as it was when the defendant engaged him to move it, and promptly notified defenddant of his action.

Upon receipt of notice from Copeland that he was no longer looking after the barge, the responsible officers of the defendant dismissed the matter from their minds; they made no effort to ascertain whether the barge was safely secured and moored, and took no precautions to prevent the barge from being carried away by the action of the tides and winds.

More than a week elapsed between the time that defendant received the aforesaid notice from Copeland and the time the barge was carried away, which was ample time for the defendant to discharge the duty which devolved upon it, to ascertain what was reasonably required to make the barge safe, and to attend to and carry out necessary precautions.

11. As soon as an independent contractor transfers the control of the subject matter of the contract to the employer, whether upon completion or stoppage of the work, the employer incurs the responsibility which the law attaches to the exercise of the control; “and the mere fact that the dangerous conditions which caused the injury were originally created by the negligence or other tortious act of a contractor will not afford him any protection, if he permits them *376 to continue after it is in his power to remove them”: 14 R. C. L. 66.

While the barge laid upon the beach in Yaquina Bay, defendant owed a duty to plaintiff and others in like situation, to exercise reasonable care to secure and moor the barge in such a manner that it would not be carried away by ordinary wind and tides.

12. Defendant did not employ Copeland to safely secure and moor the barge in the position it occupied on the beach, but if it had, the barge was so situated that it was liable to shift its position and become dangerous to the property of others, and defendant could not in such circumstances relieve itself of the duty to exercise reasonable care to safely moor the barge, by employing an independent contractor.

Where a party is under a duty to the public to so care for property owned by him that it will not injure the property of others, that duty is absolute, and cannot be delegated to an independent contractor: Thompson on Negligence, § 865; Covington etc. Bridge Co. v. Steinbrock, 61 Ohio St. 215 ( 55 N. E. 618 , 76 Am. St. Rep. 375 , and note on p. 404); Carrick v. Southern Power Co., 157 N. C. 378, 381 ( 72 S. E. 1065 ); Cole v. Durham, 176 N. C. 289 ( 97 S. E. 33 , 11 A. L. R. 560); Boucher v. New York, N. H. & H. Ry. Co., 196 Mass. 355 ( 82 N. E. 15 , 13 L. R. A. (N. S.) 1177).

The evidence, not only does not show that responsibility for the acts of negligence complained of were those of an independent contractor, but it establishes as a matter of law that the responsibility was that of the defendant, and not that of an independent contractor.

13. In response to defendant’s contentions and theory of the case, and in the face of exceptions taken *377 by plaintiff, the court instructed the jury that an employer is not liable for the acts of an independent contractor, and submitted to the jury the question whether the acts of negligence relied upon by plaintiff were committed by an independent contractor. The court also instructed the jury, to which exceptions were taken by both plaintiff and defendant, that there are certain well-known exceptions to the rule that an employer is not liable for the acts of an independent contractor; that among such exceptions is the case where the contract is let by a responsible employer to an irresponsible contractor, for the purpose of enabling the employer to escape liability for injury in the performance of work necessarily attended with danger; the case where the injury is the necessary consequence of executing the work in the manner provided for in the contract, or in the manner subsequently prescribed by the employer, and cases in which the injuries are caused by the performance of some nondelegable duty which the employer is bound to discharge; also cases where the work intrusted to an independent contractor is intrinsically dangerous to the public, however skillfully performed, and injury results directly from such intrinsic danger.

The court further assumed to make a concrete application of some of the exceptions mentioned, and directed the jury that if they found the barge was a dangerous instrumentality and was likely to cause damage unless properly secured and moored, the defendant could not delegate the duty of securely mooring the same, to an independent contractor, and defendant would be liable if found negligent as charged; that if they found the work of securing and *378 mooring the barge was essentially dangerous, or if they found that the act of securing and mooring the barge was done by an independent contractor in the manner prescribed by defendant, and that the same was done negligently, then they should find for the plaintiff.

Defendant assigns as error the instructions defining and applying the above-mentioned exceptions. The instructions complained of, for the most part correctly stated the rule of law relative to the release of an employer from liability for the negligence of an independent contractor, and likewise the exceptions to the rule. Defendant complains that there were no issues made by the evidence, to which the instructions defining the aforesaid exceptions were referable, and on that account, the instructions were abstract and calculated to mislead the jury, and we think the record supports defendant’s contention.

14. Whether the acts of negligence relied upon by plaintiff were committed by an independent contractor, and whether defendant could, by employing an independent contractor, relieve itself from liability for failure to exercise the requisite care in mooring its barge, were issues tendered by the pleadings. But the questions arising upon those issues were questions of law; and it was error to submit them to the jury, as the uncontradicted evidence established that the acts of negligence relied upon by defendant were not committed by an independent contractor; also that the barge in the place that it was stranded, and in the circumstances shown by the evidence, was liable to escape and injure the property of others, unless safely moored.

*379 Having invited error by inducing tbe court to submit to the jury tbe question of wbetber tbe acts of negligence with which defendant was charged were committed by an independent contractor, tbe defendant cannot complain that tbe court permitted tbe jury to determine wbetber under all tbe circumstances such acts were performed in discharge of a nondelegable duty devolving on defendant and shown by tbe evidence.

15. Neither tbe pleadings nor tbe evidence contained any basis for submitting to tbe jury tbe questions of wbetber tbe work of mooring tbe barge was intrinsically dangerous, or wbetber tbe work was done as contracted or was let to an irresponsible contractor, to avoid liability for injury from work necessarily attended with danger; tbe instructions in respect thereto, though perhaps correct as abstract propositions of law, were erroneous: Askay v. Maloney, 85 Or. 333, 341 ( 166 Pac. 29 ); Morris v. Perkins, 6 Or. 350 ; Glenn v. Savage, 14 Or. 567 ( 13 Pac. 442 ); Bailey v. Davis, 19 Or. 217 ( 23 Pac. 881 ); Bowen v. Clarke, 22 Or. 566 ( 30 Pac. 430 , 29 Am. St. Rep. 625 ); Geldard v. Marshall, 47 Or. 271 ( 83 Pac. 867 , 84 Pac. 803 ); Olsen v. Silverton Lbr. Co., 67 Or. 167 ( 135 Pac. 752 ).

16. Though it is error to instruct tbe jury upon abstract propositions of law, a case will not be reversed upon that account, unless tbe court is able to see “that under tbe circumstances disclosed by tbe record, tbe jury may have been, and probably were, misled, to tbe injury of tbe complaining party”: Salmon v. Olds, 9 Or. 488, 491 ; Gregoire v. Bourke, 28 Or. 275, 278 ( 42 Pac. 996 ).

*380 The only questions properly for determination by the jury in this ease were: (1) Was the defendant negligent, as charged? (2) If defendant was so negligent, was such negligence the proximate cause of plaintiff’s injury? (3) What damages did plaintiff suffer? Defendant offered no evidence upon any of these issues.

17. The instructions of which defendant complains were calculated to mislead and divert the jury from consideration of the real issues in the case, to the injury of plaintiff, with corresponding advantage to defendant, a result that affords defendant no ground of complaint. .

18. By instructing the jury concerning the exceptions to the rule relieving an employer from liability for the acts of an independent contractor in connection with the rule itself, the court erroneously granted defendant a part, but not all, it asked by way of instructions to the jury.

“One who is entitled to nothing cannot complain that he gets something, but less than he asks.” Railway Co. v. Suddoth, 70 Miss. 265 ( 12 South. 205 ).

It is not probable that the jury were misled, to the prejudice of defendant, by the instructions of which defendant complains, and the nature and amount of the verdict justifies no inference that the jury were so misled.

19. The court instructed the jury as follows:

“If you find that even though there had been a contract for towing, yet if later the defendant took possession or control of the barge, and then negligently moored or secured or tied it so that this accident happened, then the defendant would be liable to the plaintiff for the damages, if any.

*381 “If you should find that even though there had been a contract for towing, yet if later, the defendant took possession or control of the barge, and then negligently moored or secured or tied it so that this accident happened, or if you should find that after the towing company had left the barge in a dangerous condition known to the defendant, if it was left in a dangerous condition, or if it should have been known by the defendant, it was then the duty of the defendant to use reasonable care to properly secure said barge.”

The foregoing instructions are embraced in defendant’s assignments of error XIV and XV. Taken together, the instructions quoted contain correct statements of law, and they were applicable under the facts as disclosed by the evidence adduced upon the trial. No error was committed by the court in so directing the jury.

20. Defendant predicates error upon the refusal of the court to define proximate cause, as requested by defendant. In the instructions given the jury, the court defined proximate cause substantially as requested by defendant, and hence it was not error to refuse the requested instruction. ■

The court refused a request made by defendant to instruct the jury in effect, that if they found from a preponderance of the evidence that there was negligence in securing or mooring the barge in any particular, as alleged, and that such negligence was the proximate cause of the damage, if any, suffered by the plaintiff, it would then be necessary for the jury to determine whether or not such negligence could be attributed to the defendant, and that if they found that such, negligence was that of an independent contractor, plaintiff would not be entitled to a verdict. Defendant assigns error upon the refusal of the court to give the instruction mentioned. The court, in its *382 charge, fully covered the entire matter embraced in this request, and it was not error to deny the same.

21. Defendant assigns error upon the admission of certain testimony given by F. H. Koehler, a witness in behalf of plaintiff. A piece of rope, five eighths of an inch in diameter, was produced by Frank A. Fox, another witness in behalf of plaintiff, while on the stand, which the witness Fox testified he had received from Koehler in response to a request made of Koehler for a piece of the rope with which the barge was tied. "While Fox was upon the stand, the piece of rope was marked as an exhibit, but was not admitted in evidence. • Koehler testified that Fox came to him and asked for a" piece of the rope that came off of the barge; that he gave him a piece of that rope, which was something like the piece produced by Fox, just about the length of that; that it was the same kind of line he took from the barge. The piece of rope was then offered in evidence and admitted by the court, over the objection of defendant’s counsel; the objection of the defendant did not go to the testimony of Koehler, but to the admission in evidence of the piece of rope. Several witnesses testified that the barge was tied with two or three light lines less than an inch in diameter.

. There was some evidence to go to the jury to prove that the piece of rope in question was a section of one of the lines with which the barge was tied.

The only effect of admitting the piece of rope in evidence was to display before the jury the appearance of a rope five eighths of an inch in diameter, which could not have worked harm to defendant, even though it was not a piece of the rope with which the barge was tied, as the ordinary juryman has a fairly accurate idea of the appearance and strength of such *383 a rope. In any aspect of the matter, there was no prejudicial error in admitting the piece of rope in evidence.

Finding no prejudicial error committed by the court in the trial of the cause, the judgment of the Circuit Court is affirmed. Affirmed. Rehearing Denied.

Burnett, C. J., and Bean and Brown, JJ., concur.