Opinion
Argued March 13, 1930
Reversed November 12, 1930
Appeal from Circuit Court, Multnomah County, C.H. McCOLLOCH, Judge.
Action by Anna B. Leavitt against Esther Stamp and another. Judgment for plaintiff, and defendants appeal.
REVERSED AND ACTION DISMISSED.
J.W. McCulloch of Portland for appellant Esther Stamp.
Warren E. Thomas and Frank S. Senn, both of Portland (Senn Recken of Portland on the brief), for appellant William House.
Elton Watkins of Portland for respondent.
This is an action for damages for personal injuries. The cause was tried to the court and a jury, resulting in verdict and judgment for plaintiff. Defendants appeal.
Plaintiff was employed by defendant Esther Stamp as cook and housekeeper in a sanitarium. The gist of the allegations as to negligence is that when plaintiff was taking a tray of dishes from the room of a patient to the kitchen she pushed upon the door into the kitchen and an ironing board hanging back of the door fell and struck the calf of plaintiff's right leg, injuring her; that if the ironing board had been properly fastened the same would not have fallen and struck plaintiff; that the defendants were negligent in not having the ironing board properly secured. The allegations of negligence are put in issue by the answers of defendants. The answer of defendant Esther Stamp is to the effect that plaintiff, without the knowledge or consent of defendant, negligently left her duties as cook and kitchen woman and went to the second floor of the building and took from a closet on the second floor an ironing board and carried it down to the kitchen on the first floor for the purpose of using same; that after plaintiff had used the ironing board, without the knowledge or consent of this defendant, she negligently and carelessly hung the ironing board behind the door leading from a hall to the kitchen and, in falling, the ironing board struck plaintiff on the leg; that whatever injury or damage plaintiff sustained was caused by plaintiff's own negligence; that plaintiff knew and appreciated the danger and assumed whatever risk arose from the hanging of the ironing board in the place as alleged. The answer of defendant William House denies the allegations of negligence and avers, in effect, that at the time of the accident Esther Stamp was engaged in the business of conducting a sanitarium or hospital; that plaintiff was employed by Esther Stamp as cook and kitchen woman, and further avers the same as in the answer of defendant Esther Stamp. The affirmative matter of the answers was put in issue by the replies.
At the close of plaintiff's testimony defendants moved for a nonsuit on the ground of insufficient evidence and that plaintiff assumed the risk, and for the further reason that the proof did not sustain the allegations of the complaint, in that the complaint states that an ironing board hanging back of the door fell and struck the calf of plaintiff's leg and that defendants were negligent in not having it properly secured, whereas the proof shows that a third person knocked the board down and that it later fell and struck plaintiff.
It appears from the testimony of plaintiff that she had worked at the sanitarium at different times for four or five years; that she had hung this ironing board on the same hook "dozens of times"; that she was familiar with it; that upon the day of the accident, after using the ironing board, as plaintiff testified:
"there was a boy by the name of Harold that had to go over to Doctor House on Tuesday and Friday to get a treatment * * * he came home about one thirty, * * * the first thing I knew, he just — just pushed the door, — oh, just gave it a terrible slam and came in and said, `My tray ready, Mrs. Leavitt?' * * * he came out for his tray, and when I told him to go back to his room and I would bring his tray, * * * I took up his tray when I got it served, and carried it in to him, * * * and went in and carried the tray out, and coming out, before I started to wash the dishes, so I wouldn't make a noise rattling the dishes, I stood on my right foot and pushed the door to with my left foot, and the ironing board was standing there ready to fall, and it fell and struck the back part of my leg and knocked me down; * * *"
that it was fastened on a little hook back of the door. On cross-examination, Mrs. Leavitt again mentions the fact that the boy came into the kitchen for his lunch when he came home and the door slammed but she did not hear the ironing board fall "but he slammed that door so hard that when the ironing board struck me I knew he had knocked it down."
It appears that the ironing board in question was four feet, six and one-half inches in length and thirteen inches wide, with one end tapering to about six inches in width, padded with cloth in the usual manner, and with adjustable legs.
Defendants contend that the negligence alleged in the pleadings was not the proximate cause of the injury; that according to plaintiff's testimony, the ironing board would not have fallen and the accident would not have happened but for the act of a third person in knocking it off the hook; that the act of this third person was an intervening cause, and that the testimony does not show the acts of defendants were the proximate cause of the injury.
The fact that the ironing board hung at different dates on a hook behind the door, in the place from which it is alleged to have fallen, shows that under ordinary circumstances there was no danger of the ironing board falling and that the real cause of the ironing board falling from the hook was the intervening act of the boy Harold.
"Negligence consists in: 1. A legal duty to use care; 2. A breach of that duty; 3. The absence of distinct intention to produce the precise damage, if any, which actually follows.
"With this negligence, in order to sustain a civil action, there must occur: 1. Damage to the plaintiff; 2. A natural and continuous sequence, uninterruptedly connecting the breach of duty with the damage, as cause and effect." 1 Sherman Redfield, (6th Ed.) § 5; see also Chambers v. Everding Farrell, 71 Or. 521, 532 ( 136 P. 885, 143 P. 616).
It is the duty of the employer to use reasonable care to provide a reasonable safe place for his employees to work. It must be conceded that the place where plaintiff worked and necessarily opened the kitchen door was reasonably safe, at least until the kitchen door was slammed open by the boy and the ironing board left standing behind the door. It is essential for the plaintiff, in order for her to recover, to show prima facie that the defendants or one of them were guilty of negligence and that this negligence was the proximate cause of the injury: Brown v. O.-W. R. N. Co., 63 Or. 396 ( 128 P. 38). In the latter case, referring to proximate cause, the court said:
"Proximate cause is such cause as would probably lead to injury and which has been shown to have led to it. It need not appear from the evidence that the injuries complained of resulted instantly and immediately from the negligence. The law regards the one as the proximate cause of the other without regard to the lapse of time where no other cause intervenes or comes between the negligence charged and the injuries received to contribute to it. There must be nothing to break the casual connection between the alleged negligence and the injuries." See also Washington v. Baltimore, etc., R. Co., 17 W. Va. 196; Stone v. Boston A.R. Co., 171 Mass. 536 ( 51 N.E. 1, 41 L.R.A. 794).
In regard to an intervening, efficient, proximate cause, in such cases it may be stated that a prior and remote cause cannot be made the basis of an action for negligence, if such remote cause did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, successive, unrelated and efficient cause of the injury, even though such injury would not have happened but for such condition or occasion. If no danger existed in the condition, except because of the independent cause, such condition was not the proximate cause: 45 C.J. 931, § 491. There is no wrong attributable to the act complained of. The testimony of plaintiff shows that but for the intervening act of the boy Harold in causing the ironing board to fall from the hook, for which defendants are not alleged to be responsible and which act was not alleged in the complaint as a basis for plaintiff's recovery, the injury would not have happened. An injury that is a natural and probable consequence of an act of negligence is actionable and such an act is the proximate cause of the injury. However, an injury which could not have been foreseen nor reasonably anticipated as the probable result of an act of negligence is not actionable. The testimony of plaintiff does not indicate that the injury complained of could have been foreseen or reasonably anticipated by defendants as the probable result of hanging the ironing board behind the kitchen door: Chambers v. Everding Farrell, supra; Cole v. German S. L. Society, 124 Fed. 113, 115 (59 C.C.A. 595, 63 L.R.A. 416). The negligence must be proven as averred in the complaint. The testimony must correspond to the allegations of the complaint: Knahtla v. O.S.L.R. Co., 21 Or. 136 ( 27 P. 91).
In the present case the charge of negligence and the narration of the accident do not correspond with each other. The mere occurrence of the injury furnishes no cause of action. Under the rule of evidence corresponding with the allegations it is incumbent upon the plaintiff not only to establish the happening of the accident as alleged but also that it happened on account of the negligence alleged in the complaint: Holmberg v. Jacobs, 77 Or. 246 ( 150 P. 284, Ann. Cas. 1917D, 490).
The evidence shows that the plaintiff had worked at this place off and on for about five years; that she had hung this ironing board on this hook "dozens of times"; that on the occasion complained of she went to the second floor of the building and obtained the ironing board from a closet where it was safely stored and after using the same placed it behind the kitchen door. The plaintiff had no idea at that time that hanging the ironing board in the manner we have described, behind the kitchen door, was a negligent act and she could not reasonably apprehend that an accident would happen by reason thereof; neither could the defendants. It does not appear that the defendants knew in regard to where the ironing board was placed, except as it might be inferred from having been placed there for a portion of the time on different occasions. It appears that plaintiff was familiar with all the conditions, and in the use of so simple a device as a padded ironing board of the size described, in a house where plaintiff was at work and familiar with the premises, we think she assumed the risk, if any there was, of being injured by its falling. There was no defect in the ironing board: Scott v. O.R. N. Co., 14 Or. 211 ( 13 P. 98); Wagner v. Portland, 40 Or. 389 ( 60 P. 985, 67 P. 300); Dryden v. Pelton-Armstrong Co., 53 Or. 418 ( 101 P. 190); O'Neill v. Odd Fellows Home, 89 Or. 382 ( 174 P. 148).
The defendants were not insurers of their employee against all accidents. In Brown v. Oregon Lumber Co., 24 Or. 315, as shown at page 317 ( 33 P. 557), Chief Justice LORD used the following language:
"The general rule of law is that a servant assumes all the risks ordinarily incident to his employment, and also all additional or unusual risks which he may knowingly and voluntarily undertake. It is one of the implied conditions of every contract for employment that the servant is competent to discharge the duties for which he is employed: Wood, Master and Servant, 166. In accepting service, he not only assumes the risks reasonably to be anticipated as incident to it, but he also assumes that he has the capacity to understand the nature and extent of such service, and has the requisite ability to perform it."
The testimony in regard to the defendant House having anything to do with the operation of the sanitarium is, to say the least, very meager. He termed it "conducting the sanitarium" as he sent his patients to this institution, but under our view of the testimony it is unnecessary to consider this question.
We repeat, plaintiff's own testimony shows the boy Harold, a patient at the hospital, knocked the ironing board off the hook and while it was leaning against the door plaintiff attempted to close the same and it fell, striking her; that this act of the boy was an intervening, efficient cause, for which defendants are not liable: Merriam v. Hamilton, 64 Or. 476 ( 130 P. 406); Knauff v. Highland Development Co., 68 Or. 93 ( 136 P. 846); Hills v. Shaw, 69 Or. 460 ( 137 P. 229).
The evidence does not support the allegations of the complaint. The motion of defendants for nonsuit should have been granted.
Judgment of the circuit court is reversed and the action dismissed.
COSHOW, C.J., and BROWN, J., concur.
BELT, J., concurs in the result.