Pennock v. Newhouse Realty Co.

PRATT, Justice. *410 *409 James E. Pennock recovered damages against the New- *410 house Realty Company for burns received from hot grease. The defendant company appealed. For a number of years Mr. Pennoek had been exterminating insects for the defendant company in the kitchen of their hotel. The gist of his action lies in the following quotations taken from his complaint: «4. * * * that the said kitchen at said time and place was equipped with a tile floor which was maintained by the employees and servants of the defendant under the supervision and direction of the defendant in a smooth and highly polished condition; that the said servants and employees under the supervision and direction of the said defendant during the time aforesaid carried hot grease from the said range in said iron pot to the said can on said stand; that at said time and place the. servants and employees of the said defendant while carrying the said hot grease in the above described iron pot and pouring the said hot grease into the said can resting on the said stand, negligently and carelessly caused the said hot grease to spill, splash, drip, and fall upon the said floor between the east end of said small table and said range and the said stand causing said tile floor to• become slick and slippery due to the said spilling of said hot grease; that at approximately the time aforesaid this plaintiff left the said pantry to go to the said cold meat room in said kitchen and as this plaintiff, while using due care, caution, and circumspection for his own safety reached a place in said passageway midway between the said range and said small table and said stand and can which was at said time filled with scalding hot grease, slipped on the said tile floor and said grease thereon causing this plaintiff to fall thereon with great force and violence; that this plaintiff further alleges that while he was in the process of falling to the said floor, he fell into and against, on and upon said can of hot grease causing the same to tip over, splash, spill, and run over, on and upon his body, burning his head, shoulders, arms, hips, legs, ankles, and feet with second and third degree burns causing this plaintiff great and excruciating and indescribable pain, suffering, and injury all to plaintiff’s damage as hereinafter set out.” (Italics added.) “5. That the said defendant by the exercise of due care, caution, and circumspection, knew, or should have known of the highly dangerous condition of said tile floor caused by the spilling of said hot grease, and the dangerous location of said hot grease on said stand, and should have known the said stand was unguarded and unprotected and that the said can or cans containing the said hot grease were not covered and that said tile floor was kept and maintained in a highly polished and smooth condition. *411 “6. That the negligent and careless acts on the part of the defendant aforesaid were the proximate cause of this plaintiff’s injuries, which negligent and careless acts are more particularly set out as follows, to wit: “(a) That the defendant was negligent and careless in maintaining the said tile floor in a smooth and highly polished condition and maintaining said stand and said hot oil in said cans in said passageway and knowing the danger thereof. “ (b) That the defendant was negligent and careless in failing and omitting to place any guards, rails, signs, or other warning or protection of any kind, nature, or description around, by, or near the said stand and said cans containing said hot grease and allowing the same to remain unguarded and unprotected, knowing that the said grease in said cans was scalding hot. “ (c) That the defendant was negligent and careless in allowing the tops of said cans containing the said hot grease to remain off, and in wholly failing and omitting to provide covers for the said cans, and in failing and omitting to fasten the said cans or said stand to the wall or floor or in any way fastening the same so that the said cans and stand could not be easily tipped over. “(d) That the defendant was negligent and careless in wholly failing and omitting to remove the grease that had spilled, splashed, sprayed, or Tallen to the floor while the said hot grease was being carried, transferred, and poured from the said iron kettle to the said can. “(e) That the defendant was negligent and careless in allowing the hot grease to spill, splash, spray, or fall to the said tile floor and remain thereon. “ (f) That the defendant was negligent and careless in wholly failing and omitting to properly light the said kitchen and particularly said passageway of said kitchen where this plaintiff fell.” To this complaint defendant entered a special demurrer on the grounds of uncertainty. The demurrer was overruled. This ruling is covered by defendant’s assignments of error. We are of the opinion that the demurrer should have been sustained. If guards, rails, signs, can-covers, or different lighting were essential to the careful conduct of the kitchen, then there must have been in that kitchen a hazardous condition against injury from which such equipment should have afforded protection. By “hazardous condition” we do *412 not mean merely the presence of hot grease. The mere possession of such grease does not impose upon the one in possession the duty of affording others protection against injury from contact with it. If this were not so, the possession of that grease in the center of a ten acre pasture would call for protective equipment for the protection of a passerby outside the pasture. There must be some circumstances coupled with the possession that brings the passerby in proximity to a dangerous situation. But distance from the path taken by the passer-by, though an important element, is not the sole element which coupled with possession of the grease imposes upon the one in possession the duty of affording protection to the passer-by. In other words, the duty does not arise at any fixed point measured in feet, inches, or other unit of measure from the path of the passer-by. The distance is governed by the circumstances of each case such as the narrowness of the passageway, the visibility, the protrusion of the grease container into the pathway — any number of assumptions might be the subject of our indulgence. But these governing circumstances must be of a foreseeable nature, and not of an unusual or unexpected character. Thus, assuming the hot grease in proximity to the pathway but so situated that there was very little or no danger in passing it then, if someone deliberately or carelessly left a wire across the path, or dropped oil upon it, the one in possession of the grease would not have violated a duty of protection to the passer-by who stumbled over the wire or slipped on the oil and fell into the hot grease container, on any theory that had the container been properly guarded the nature of the resultant injury might have been different. The proximate cause of the injury under such an assumption would have been the wire or the oil on the pathway. However, a different rule might apply if the circumstances were such that a wire across the path or oil upon it was a common occurrence or was an anticipated occurrence. In such a case the one in possession of the grease might be under the duty of anticipating the occurrence, and of affording protection against injury from it. *413 One more thought before returning to the pleadings in this case: To merely allege negligence in a failure to afford protection from hot grease does not by inference supply the “hazardous condition.” In other words, to charge one only with carelessness and negligence in failing to afford protection against hot grease does not state facts sufficient to place upon his shoulders that duty. He may be the one who keeps the grease in the center of his ten acre pasture. Now to the pleadings: The italicized lines of the quotation from the pleadings indicate not a common occurrence, but the unusual circumstance. Had the lower court limited his instructions to this theory of the case, we would be inclined to let the verdict stand. But he instructed upon the lack of protective equipment about the hot grease. He followed his theory of the complaint and committed error in so instructing. Thus we are compelled to examine the pleadings to see if a causal connection is clearly shown between this alleged failure and the injury. We find considerable uncertainty upon this point. It may be illustrated by a few questions. What was the hazardous condition? Was it an overcrowded kitchen? Was it a narrow passageway ? Was the slippery condition of the floor a common occurrence ? What was it plaintiff could not see for lack of proper lights — the grease, the can, the passageway — what? Plaintiff’s pleadings do not answer any one of these questions. The nearest he comes to it is paragraph 5 (quoted). There he refers specifically to the careless spilling of the. grease, which we have shown by illustration is not alleged in the class of common occurrences or anticipated occurrences, imposing upon the employer the duty of anticipating such a result. The defendant is entitled to know what plaintiff has in mind. A defense to an incident of carelessness of an employee may be entirely different from a defense to a failure to afford protection against a dangerous condition of the premises. *414 The opinion we have expressed above necessitates a vacation of the judgment, and a remand of the case, with directions that the demurrer be sustained, with leave to counsel for the plaintiff to amend his pleadings if he desires. We say this in spite of the fact that we recognize this complaint might also have been construed that the allegations of negligence in the lack of protective equipment were mere sur-plusage. It eliminates the necessity of discussing many of the other assignments of error, as they will probably not occur again; but there are one or two that deserve a brief cautionary statement from us. We do not agree with defendant’s objection to the following testimony on the ground that it was merely an opinion: “Q. Now Mr. Chugg, did any oil or grease spill on the floor where you rendered it that evening?” A. Yes, I believe there was; naturally, there would be a few drippings from a can where you are pouring it.” Mr. Chugg, however, testified that, as he left the kitchen that evening, he called out to the others to be careful as he had just poured the grease and they might fall. Mr. Chugg’s answer to the question impresses us as a matter of uncertainty in his own mind which uncertainty he tries to overcome by reasoning. Such an uncertainty is not a ground for rejecting his testimony. It may be, in the mind of the jury, the measure of his credibility. Another objection deserving of comment is that to the testimony of Dr. Openshaw, on the ground that it was speculative. We quote one of the questions and two of the answers of the doctor: “Q. Tell the court and jury just what his physical condition was, as you observed it.” (Referring to plaintiff.) A. We of the medical profession regard any patient with one quarter of the surface of the body burned as a seriously ill patient.” The danger of such an answer as this may be illustrated merely by adding the words “whether he is or not,” to the end of the answer. If such an answer is permitted, the doc *415 tor may, by such an unimpeachable statement, convey to the jury the thought that defendant was seriously ill, where, as a matter of fact, the defendant may be an exception to the general rule. It is an indirect answer fraught with serious potentialities. After objections, and a ruling by the lower court, the doctor continued: “Anyone who has a burn which involves as much of the extent of the body as this man had, develops a toxic protein substance under the skin, which so benumbs the vital centers of the body that it is liable, at any time, to produce a blocking of the kidneys, a blocking of the sensory nervous system which governs the fascia motor system, producing a severe grade of toxemia and shock, which is liable to result in the patient’s death.” This answer is subject to the same objection as the other. To state what generally happens in such cases leaves it entirely to the speculation of the jury as to whether or not it is happening to plaintiff. Plaintiff is entitled to have the jury consider, as part of the measure of his damages, that which is reasonably expected to follow his injured condition; but its proof does not lie in what may have happened to others equally burnt. The doctor’s experience in other cases and his learning acquired from other members of his profession may qualify him to answer, but his answer should be confined to the symptoms found in plaintiff. These errors may not be fatal to the case by reason of other testimony introduced, but they are well worth considering for future purposes. The judgment of the lower court is vacated and set aside, and the case remanded with directions to the lower court to sustain the demurrer, and permit counsel for plaintiff to amend if he so desires. Costs to appellant.