Geldard v. Marshall

Mr. Justice Bean, after stating the facts in the foregoing language, delivered the opinion of the court. The first and third defenses set up in the answer may be eliminated from the discussion, as they are not supported by the testimony. The only questions for our consideration are (1) whether there was any evidence from which the jury could have found that defendant was negligent in using a defective or unsafe rope; and (2) if so, whether the risk incident thereto was assumed by the plaintiff. The principles of law by which these questions are to be determined are too well established to require anything more than a mere statement. It is the duty of a master to exercise reasonable care to furnish his servant with a reasonably safe place in which to work, and reasonably safe appliances and instrumentalities to work with, and to keep them in that condition. For a failure in either of these respects he is liable to an injured servant who is himself free from negligence, unless the defects are known [444] to or plainly observable by him: Miller v. Inman, 40 Or. 161, 165 (66 Pac. 713). In an action by a servant against his master to recover damages for an injury, the burden of proof is on the plaintiff to show the negligence charged, and the mere happening of the accident is ordinarily not sufficient: Duntley v. Inman, 42 Or. 334 (70 Pac. 529). But it is not necessary that there should be positive proof of negligence. It, like any other fact, may be inferred from the circumstances. There may be, and are, cases in which the master’s negligence is clearly inferable, although there is no positive proof thereof. The rule is that if two inferences may be legitimately drawn from the facts in evidence, one favorable and the other unfavorable to the defendant, a question is presented which calls for the opinion of the jury. If, however, there is no proof of any fact by which the defendant’s conduct may be ascertained, there is nothing for the jury. The mere proof of an accident, therefore, ordinarily raises no presumption of negligence; but, where it is accompanied by proof of facts and circumstances from which an inference of negligence may or may not be drawn, the case cannot be determined by the court as a matter of law, but must be submitted to the jury. 1. Now in this case certain facts, independent of mere proof of the accident, stand out clearly from the testimony. The defendant was personally directing the work, and had actual knowledge of the size and condition of the rope in use, or was chargeable therewith. The same rope had been used by him in lowering all the other braces, and had therefore been subjected to a heavy strain. In lowering-each brace, a turn of the rope was taken around the cap, and the brace lowered by slacking it up. It was thus necessarily subjected to more or less friction each time a brace was lowered, by coming in contact with the sharp edges 'of the cap. As a consequence,it was manifestly not in as good condition at the time of the accident as at the [445] beginning of the work. The rope broke in ordinary use, and without being subjected to any unusual or extraordinary strain. In addition to all this, there was evidence tending to show that it was an old rope, and that it broke the day before when in use. All these circumstances tended to show that the rope was imperfect and unsuitable for the purposes to which'it was applied, and we do not think it can be said, as a matter of la,w, that under such circumstances there is no question for the jury. In the Duntley Case, which seems to be relied upon by defendant, the injury was caused by the sudden breaking of an iron pulley. The testimony did not show any apparent cause for the breaking. The pulley had been purchased from and set up by a reputable manufacturer. It had been in constant and successful use for some time, and was admittedly suitable and proper for the use to which it was put. There Avas therefore nothing from Avhich the negligence of the defendant could have been inferred, except the mere fact of the accident, and this the court held was insufficient. But here the sufficiency of the rope which broke is challenged. It was shown that the defendant had used it in a manner necessarily calculated to weaken and destroy its efficiency, that it had broken the day before, and that it was an old rope. Thus there was proof tending to show that the rope was defective and insufficient, aside from the mere happening of the accident, and the distinction between this and the Duntley Case is clear. 2. It is argued, however, that, even if the rope was defective and inadequate for the work, the plaintiff assumed the increased risk caused thereby by continuing in the defendant’s service. The rule is well established that where an employé receives and uses a defective appliance he cannot recover for an injury resulting therefrom, if, with knowledge of the defect, he continues in its use Avithout, notice to his employer. There is no evidence in this case, [446] however, that the plaintiff knew the rope was defective or worn. He did not use it to any extent. He had not examined or noticed it particularly, nor was it his place to do so. It was the duty of the defendant to furnish reasonably safe appliances for the use of his servants, and the plaintiff had a right to assume that this duty had been discharged : Johnston v. Oregon S. L. Ry. Co. 23 Or. 94, 104 (31 Pac. 283); Texas & Pac. Ry. v. Archibald, 170 U. S. 665 (18 Sup. Ct. 777). Nor does his knowledge of the breaking of the rope the day before the accident alter the situation. He was not using it at the time, and did not know that the break was the result of a defect therein. Indeed, from what the defendant said at the time, and from his conduct, the plaintiff had a right to suppose that the breaking was caused by the carelessness of the man who was handling the rope. Moreover, he had a right to assume, even if the break had been caused by a defect, that the defendant had since substituted a suitable rope in its place. We do not think, therefore, under the testimony as it stands, that there was any ground for holding that the plaintiff assumed the increased risk caused by the use of a defective rope, if it was in fact defective. From these views it follows that the court was in error in sustaining the motion for a nonsuit, and the judgment must be reversed and the cause remanded for a new trial. Reversed.