Riley v. Kendrick Warehouse & Milling Co.

MORGAN, J. This is an appeal from a judgment, and from an order overruling a motion for a new trial, in an action by respondent against appellant for damages arising from personal injuries received by him while in its employ. On and prior to November 22, 1913, respondent was employed by appellant in its mill at Kendriek. The mill was located about three hundred feet' from the Northern Pacific railroad tracks and an elevated truekway had been built leading from one of the doors of the mill to a point adjacent to one of the switch-tracks of the railroad-company, for convenience in loading and unloading cars. The top, or track, of this truckway was made of planks, laid lengthwise-of the structure, and the greater portion of it was about 4% feet wide, but for a distance of about 12 feet from the mill, two additional planks had been so used, in its construction, as to make it about 18 inches wider to that point. Although the truckway had been built for the purpose above stated, it appears that ever since its construction, a considerable length of time prior to the accident which resulted in this litigation, it had been the custom of the employees of appellant, with its knowledge and acquiescence, to use it for a walk in coming to and going from the mill. It further appears there was a road leading to the mill which could be, and sometimes was, used by pedestrians, and there is conflict in the evidence as. to the condition of the road on the evening in question, but the record, upon this point, is sufficient to justify the jury in finding that it was so muddy as to be impractical, at that time, for the use of persons on foot. [231] At about 6 o’clock, on the evening of November 22d, appellant finished his day’s work and started for home across the truckway. It was quite dark and the truckway was neither supplied with lights nor banisters. Because of the darkness and absence of banisters he walked off the end of the two additional planks, above mentioned, fell a distance of several feet, struck upon his head and shoulders, and received the injuries because of which he seeks to recover in this action. There is evidence to show that a number of lanterns were kept in the mill by appellant and that its employees were permitted to use them in leaving the place at night, but respondent testified that he had never been told of, and that he did not know of, such permission, and was not aware of a custom whereby the employees used the company’s lanterns for such purpose. Other evidence tends to show that the foreman stated, before respondent left the premises, that he would get a lantern and light the way; also that another employee, suggested that he wait for the foreman to come with the light, but respondent testified that if such statement, or suggestion, was made, he did not hear it. Respondent bases his action upon the failure of appellant to use due diligence to make the truckway safe for him to walk upon in leaving his work, by lighting it or providing it with banisters. Appellant, while it did not move for a nonsuit or an instructed verdict in its favor, denies negligence upon its part and insists that respondent’s injuries were due to his contributory negligence. Certain other questions are raised by the assignment of errors, but we do not deem a discussion of them to be necessary to a decision of this case. It is the duty of an employer to use ordinary care and diligence to furnish his employee a reasonably safe place to work (Brayman v. Russell & Pugh L. Co., ante, p. 140, 169 Pac. 932), and a reasonably safe means of access to and exit from the place of employment. (Moore v. Pacific Coast Steel Co., 171 Cal. 489, 153 Pac. 912; Strobel v. Gerst Bros. Mfg. Co., 148 Mo. App. 22, 127 S. W. 421; McFarland v. Charles [232] Hebard & Son, 174 Mich. 347, 140 N. W. 541; Curry v. Atlantic Refining Co., 239 Pa. St. 302, 86 Atl. 856.) We cannot say, as a matter of law, that appellant exercised ordinary care and diligence to furnish respondent a reasonably safe means of exit from the mill; that the road provided was in a suitable condition for travel, by a pedestrian, and that respondent should have traveled over it instead of the truckway when leaving his work; that he was guilty of contributory negligence im not procuring, or waiting for a light; nor that, from all the facts and circumstances disclosed by the record, appellant was not guilty of such negligence in failing to build banisters, or light the truckway, which it knew was customarily used by its employees as a means of access to and exit from the mill, as to render it liable in damages to respondent for the injuries he received in falling from it. These were matters for the jury to decide from the evidence. It was guided by instructions, as to the law, in which we find no error, and its verdict will not be disturbed. (Curry v. Atlantic Refining Co., supra; Moore v. Pacific Coast Steel Co., supra; Puget Sound Elec. Ry. Co. v. Harrigan, 176 Fed. 488, 100 C. C. A. 104; Tecza v. Sulzberger & Sons Co., 92 Kan. 97, 140 Pac. 105.) Appellant contends that the daifiages awarded are excessive, and were given under the influence of passion and prejudice. The record does not sustain this contention. The judgment and order appealed from are affirmed. Costs are awarded to respondent. Rice, 'J., concurs.