Blair v. Western Cedar Co.

146 P. 480 | Or. | 1915

Mr. Justice Burnett

delivered the opinion of the court.

1, 2. The vital question to he determined is whether the complaint states a cause of action within the terms of what is known as the employers’ liability law (Chapter 3, Laws 1911; L. O. L. xxxvi). That is a statute which specifies in its title that it is—

“for the protection and safety of persons engaged * * in any dangerous occupation, and extending and defining the liability of employers in any or all acts of negligence, or for injury or death of their employees, and defining who are the agents of the employer. * * ”

Section 1 of that law enjoins sundry specified duties upon all owners, contractors, subcontractors, corporations or persons whatsoever engaged in certain constructive operations, and concludes with this clause:

“And generally, all owners, contractors or subcontractors and other persons having charge of, or responsible for, any work involving a risk or danger to the employees or the public, shall use every device, care and precaution which it is practicable to use for the protection and safety of life and limb, limited only by the necessity for preserving the efficiency of the structure, machine or other apparatus or device, and without regard to the additional cost of suitable material or safety appliance and devices. ’ ’

The allegation of the complaint already quoted, to the effect that the defendant had so arranged and operated its plant and roads that the same were dangerous and unnecessarily exposed its employees to the danger of personal injury, is sufficient to bring tbe case within the purport of the general clause, above quoted, with which Section 1 of the act concludes. It is argued by the defendant that, because the earlier part of the section prescribes some particular things to be done in certain cases in the way of inspection of all metals, wood, rope, glass, rubber, gutta-percha, or other material used in electric work and in the construction of scaffolding, staging, false work, and the like in building operations, negligence cannot be asserted under the employers ’ liability law, unless it can be classified under one or more of these specifications. This, however, would be giving to a remedial measure a narrow construction not in consonance with its purpose. Although the statute in question contains a criminal penalty to be visited upon those who violate its precepts, yet the direct expression even of that feature is that it “shall not affect or lessen the civil liability of such persons.” In its civil aspect the statute supplies a new remedy, and as such is to be liberally construed. The people in promulgating this law have determined that the old rule was too harsh which imposed upon the laborer, who in general is the least able to sustain it, the full risk of the employment, and compelled him to bear the entire consequence of his own inadvertence, irrespective of its proportion to the negligence of the employer. On the other hand, in the general provision at the end of Section 1 it has more definitely and strictly prescribed the degree of care to be used by those who conduct dangerous industrial operations.

The defendant contends that neither the facts alleged by the pleadings nor disclosed by the testimony on the trial made out a case of negligence under the act in question. The following cases are cited to support that position:

Statts v. Twohy Brothers’ Co., 61 Or. 602 (123 Pac. 909). The substance of that decision was not to exonerate the defendants from an action by proper parties under the employers ’ liability law, but to hold that the act in question did not necessarily repeal Section 380, L. O. L., giving a right of action to the personal represente, lives of a deceased employee, who met his death by reason of the negligence of the employer.

Lawton v. Morgan, Fliedner & Boyce, 66 Or. 292 (131 Pac. 314, 134 Pac. 1037), simply announces the rule that an owner of property whereon a building is being erected is not liable under the employers’ liability law for the negligence of an independent contractor.

Tamm v. Sauset, 67 Or. 292 (135 Pac. 868), construed the act to apply.only to the person actually engaged in the prosecution of the undertaking, and further held the subcontractor to be liable to his own employee to the exclusion of the general contractor, who was not directly engaged in carrying on the work causing the injury.

Dunn v. Orchard Land & Timber Co., 68 Or. 97 (136 Pac. 872), construes the general clause already referred to as enlarging the scope of the earlier provisions of Section 1.

Schulte v. Pac. Paper Co., 67 Or. 334 (135 Pac. 527, 136 Pac. 5), merely decides that the employers’ liability law applies only to cases within the purview of the statute, and in substance declares that it is not necessary for plaintiff to allege directly that he brings his action under the Employers ’ Liability Act, but that it is sufficient if from the facts stated the court can draw the conclusion that the statute applies to the case made. In other words, it is not necessary to place on a complaint the label, “This is an action under the employers ’ liability law. ’ ’ The principal question decided in that case was that the trial court erred in leaving the jury to decide whether the common law or the statute applied to the issue involved.

In Schaedler v. Columbia Contract Co., 67 Or. 412, (135 Pac. 536), the negligence charged was in not maintaining a railing along an elevated plank walk leading under a dock to a steamboat. It appeared that the accident happened, not on account of a lack of railing, but because there was a hole in the walk, and so it was decided that the case stated was not within the provisions of the act requiring a railing around staging more than 20 feet from the ground, but the defendant was otherwise held liable.

In Isaacson v. Beaver Logging Co., 73 Or. 28 (143 Pac. 938), the plaintiff, although generally engaged in the logging business, was at the time he received the injury employed in removing from a car a heavy iron spool called a “gipsy,” in doing which he stumbled and fell, receiving injury from contact with the spool. The court held that particular work not to be within the scope of the employers’ liability law.

3-5. At least after verdict the complaint here is sufficient to show that the defendant had charge of and was responsible for a work involving risk and danger to the employees. In discussing the aspect of contributory negligence the defendant’s brief contains this language:

“Plaintiff was placed on this portion of the roadway because there was danger there in conducting these logging - operations. * * Extreme watchfulness, extreme care and caution, extreme promptness in action in case anything went wrong, was imposed upon the plaintiff by the position he occupied and the duties imposed upon him. Upon this depended, not only the success of the logging operations, but his own safety and the safety of others in the vicinity of this portion of the roadway.”

The facts alleged, the evidence in the record, and the argument of counsel for defendant all point to the conclusion that this was a dangerous work within the meaning of the statute. Whether it was practicable as a measure of care and precaution for the safety of life and limb, without impairing the efficiency of the equipment, to remove the unused stump standing near the line, so logs would not collide with it, or to run the two cables on opposite sides of the creek, or far enough apart, so that in avoiding the dangers of one the plaintiff would not be exposed to the hazards of the other, or to remedy any of the other faults mentioned, were all proper questions of fact to be determined by the jury under the statute.

It is impracticable within the limits of any ordinary enactment minutely to specify every and all manner of precaution to be used in the multiform industries of the country. The statute has devoted considerable attention to electrical and building operations; but it is perfectly competent without particular detail to make the general declaration in the statute already alluded to, and, when facts are stated which show a violation of the duty thus enjoined, the courts cannot refuse to enforce the law as declared by the people.

6. This in effect disposes of the remaining assignments of error adversely to the defendant. They are in substance that the court was wrong in not granting a nonsuit on account of the contributory negligence of the plaintiff and his assumption of the risk of his employment. We have already decided that, on account of the statute being in one aspect a criminal law, it eliminates the feature of assumption of risk, because the employee will not be presumed to have contracted in a manner involving a violation of the statute by the employer in respect to the duties which it enjoins upon him: Hill v. Saugesled, 53 Or. 178 (98 Pac. 524, 22 L. R. A. (N. S.) 634); Love v. Chambers Lumber Co., 64 Or. 129 (129 Pac. 492); Dorn v. Clarke-Woodward Drug Co., 65 Or. 516 (133 Pac. 351); Dunn v. Orchard Land Co., 68 Or. 97 (136 Pac. 872).

7. The enactment itself declares:

“The contributory negligence of the person injured shall not be a defense, but may be taken into account by the jury in fixing the amount of damages.”

The contention of the defendant that contributory negligence is a complete defense is in direct contravention of this statute. In other words, the theory of the defendant is that the cause of action was stated under the rules of the common law making assumption of risk and contributory negligence defenses in bar; but, as we have seen, the complaint comes within the provisions of the employers’ liability law, thus precluding the defenses mentioned.

We find no substantial error in the proceedings of the Circuit Court, and its judgment is affirmed.

Affirmed. Eehearing Denied.

Mr. Chief Justice Moore, Mr. Justice Benson and Mr. Justice Harris concur. Mr. Justice McBride takes no part in the consideration of this case.