Moulton v. St. Johns Lumber Co.

Mr. Justice Moore delivered the opinion of the court. 1. The plaintiff as a witness having detailed the incidents preceding his injury, described the manner of obtaining lumber from the loft, and narrated the order given by the defendant’s superintendent to secure such material, in obeying which instruction he started up the shed roof, when it commenced to fall, was directed by his counsel as follows: “After you took the second step, explain what you did.” Answering this command, the witness gave an account of the fall of the shed, and stated that, as soon as possible, he inquired of defendant’s superintendent, who was present when the struct true collapsed: “What kind of a trap this was to set for a man?” To this remark defendant’s' counsel objected on the ground that the observation having been made after the injury was inflicted was no part of the res gestae. Moulton in reply.to an inquiry by the court, “How long was it after the accident that you spoke to Mr.- Huard, the defendant’s superintendent?” said “Within a few seconds. * * Well just as soon as I could speak.” Thereupon the objection was overruled and an exception allowed. The witness was further directed by his counsel as follows: “Just state what you said to Mr. Huard, and what he said to you at the time he approached you.” Moulton replied in part as follows: “I asked him what kind of a trap this was to set for a man?” The defendant’s counsel objected to such remark on the ground that any observation the witness may have made regarding his injury after it occurred would have no bearing as to how the accident happened. The objection was overruled, however, and an exception allowed. — 67 — It is maintained that the expression uttered by plaintiff after he was hurt was no part of the res gestae, and that being true errors were committed in overruling the objections interposed. It will be remembered that the plaintiff was directed to state what he did after taking the second step on the roof of the shed as it was falling, and that, having narrated his actions at that time, he repeated the remark which he made to defendant’s superintendent. The command, “State what you did,” was proper, and no objection was made or could legally have been sustained to the direction. The plaintiff having complied therewith volunteered the declaration which at the time he was hurt he made to the defendant’s superintendent. Instead of moving to strike out the observation on the ground that it was not responsive, an objection was made to the statement. This was not the proper course to pursue. The rule is that where a question asked of a witness does not indicate that the testimony reasonably to be expected is objectionable, and the answer does not correspond with the inquiry, but contains what is deemed to be improper testimony, the remedy is to move to strike it out. Cromeenes v. San Pedro, L. A. & S. L. R. Co., 37 Utah 475 (109 Pac. 10). The second command, addressed to plaintiff, “Just state what you said to Mr. Huard and what he said to you at the time he approached you,” was not proper, according to the theory of defendant’s counsel, and objection should then have been made which was not done. After the witness had thus, without objection, reiterated the remark which he had made to the defendant’s superintendent, complaint was made of the language used. If it be assumed that Moulton hastily complied with the direction of his counsel before defendant’s attorney had an opportunity to object to the command, which is not apparent from an inspection of the bill of exceptions, a motion to strike out the — 68 — observation should have been made. It is doubtful, therefore, if the legal principle invoked in the two alleged errors thus assigned is presented for consideration. The inquiry will be treated, however, as it was by the court and the counsel at the trial, as to whether or not the remark complained of was a part of the res gestae. In People v. Davis, 56 N. Y. 95, 102, Mr. Justice Grover, in discussing this subject, announces the following legal principle: “The question is, Did the proposed declaration accompany the act or was it so connected therewith as to constitute a part of it? If so, it is a part of the res gestae, and competent; otherwise not.” 2. In the case at bar the observation was made, as testified to by plaintiff, in a second or two after he fell, and as soon as he could speak. At the time there apparently was nq opportunity to formulate a theory respecting the cause of the injury sustained. The remark objected to was the natural and spontaneous expression of resentment of the plaintiff, who had sustained a compound fracture of one of his limbs. His impulsive declaration immediately accompanied the hurt, and was so intimately connected with the injury as to be an element of it, and for that reason his detailing of the inquiry which he propounded to Huard at that time was admissible in evidence as a part of the res gestae. Section 707, L. O. L. Little Rock, M. R. & T. Ry. Co. v. Leverett’s Adm’r, 48 Ark. 333 (3 S. W. 50: 3 Am. St. Rep. 230) ; McLeod, Receiver v. Ginther’s Adm’r, 80 Ky. 399; Walters v. Spokane International Ry. Co., 58 Wash. 293 (108 Pac. 593) ; Swanson v. Pacific Shipping Co., 60 Wash. 87 (110 Pac. 795). No errors were committed in the particulars so assigned. Though denied by some of the witnesses, testimony was offered from which the jury might have found that for several months before the accident defendant’s — 69 — servants had frequently passed over the inclined load of lumber, forming a passageway thence along the roof of the shed, putting lumber into and taking it out of the loft, so that notice of the manner of reaching such upper room in the way indicated might reasonably be imputed to the defendant. The plaintiff testified that prior to September 27, 1909, he "had worked at the sawmill about a week, and in that time he had made two or three trips to the loft where the lumber was stored, going over the roof of the shed, beneath which flooring and stepping were then piled, and passing along the truck load of lumber forming an inclined way; that just prior to the injury he notified Mr. Huard that he desired some lumber to complete a piece of work on which he was engaged for the defendant, informing the superintendent that the material was stored in the loft, whereupon the latter directed him to get the necessary lumber from the place indicated; that, when he attempted to obey the command, Huard stood near and in full view of the shed; and that, when falling, the witness observed the superintendent looking towards him. The jury might therefore have reasonably inferred that the defendant’s superintendent saw plaintiff as he ascended the inclined way. 8. It is insisted by defendant’s counsel that if this testimony can be construed as a command to go upon the roof of the shed, in obeying which plaintiff was injured, the order was the direction of a fellow workman for whose conduct no responsibility attaches to the master, and, such being the case, an error was committed in refusing to direct a verdict for the defendant. To understand the relation Huard sustained to the workmen at the mill and the duties required of him, the testimony tends to show that in performing construction work for the defendant he had the custody — 70 — of 25 or 30 men, including the plaintiff, whom he employed and discharged; that about a week prior to the accident he supervised the removal of a building against which rested one side of the shed, a crosspiece of which was nailed to such building; that the disconnecting from that structure rendered the shed insecure, and removing the flooring and stepping, which supported the shed roof, made it unsafe and dangerous. 4, 5. The law imposes upon the master the duty to furnish the servant a reasonably safe place in which to perform his work and also makes it incumbent upon the former from time to time to inspect such place and keep it in a reasonably safe condition where any defect therein is unknown to the servant. 26 Cyc. 1136. 6. For any negligence on the part of an employe to whom the master has delegated the service of making such investigation and keeping up such restoration in consequence of which carelessness another servant sustains an injury, the master is responsible for the resulting damages. 12 Am. & Eng. Ency. Law (2 ed.) 958. 7. The chief defect in the shed was undoubtedly occasioned by the removal of the building to which it had been fastened, thereby impairing its stability. Huard having caused such building to be taken away without bracing or otherwise making the shed safe, his employer knew or ought to have known that it was dangerous. In passing over the roof to get the lumber which he was told to secure the plaintiff, who was a recent employe, and for that reason but little acquainted with the shed, and reasonably supposing that it was safe, should have been notified of the hazard he might possibly encounter, and the failure thus to warn him of the danger was a breach of duty on the part of Huard who was not in this respect a fellow workman with him at the time. Allen v. Standard Box & Lumber Co., 53 Or.10 (96 Pac. 1109: 97 Pac. 555: 98 Pac. 509) ; Elliff v. — 71 — Oregon R. & N. Co., 53 Or. 66 (99 Pac. 76). No error was committed in refusing to instruct the jury to find for the defendant as requested. It is argued that plaintiff might have obtained the lumber from the loft by ladder in the use of which no danger would have been encountered, and, as the choice of two ways was open to him, he, as an experienced carpenter, should have known the conditions, and, having selected the most dangerous way, he thereby assumed the risk, and was guilty of contributory negligence in consequence of which he was injured, and for that reason an error was committed in refusing to direct the jury to find for the defendant. The testimony tends to show that near the place of the accident no- ladder was kept, but that one might have been obtained from the mill yard or from some other building. 8. The plaintiff testified that, before he was hurt, he believed the shed was fastened to the building in the loft of which the lumber was stored, and that he did not know another building had ever stood beside the shed to which it had been-nailed. He had therefore no reason to apprehend any danger in passing, as other employes had frequently done, over the roof which was apparently as safe as a ladder; and. as between two obviously safe ways, if he selected one which ultimately proved to be dangerous in consequence of which he sustained an injury, he cannot be charged with negligence. 20 Am. & Eng. Ency. Law (2 ed.) 146; 26 Cyc. 1249; Rush v. Oregon Power Co., 51 Or. 519 (95 Pac. 193). No error was committed in refusing to instruct the jury as requested. Believing that the defendant had a fair trial at which no prejudicial errors were committed, it follows that the judgment should be affirmed, and it is so ordered. Affirmed.