24 Or. 315 | Or. | 1893
delivered tbe opinion of tbe court:
This was an action brought by tbe plaintiff to recover damages from tbe defendant for an injury sustained by him while employed in its service. Tbe alleged negligence of the defendant consisted of carelessly causing a pile of railroad ties to be so placed in a box car, which plaintiff was assisting in loading, that the ties fell upon him, producing tbe injury complained of. Substantially tbe facts are, as appears from tbe testimony, that tbe
2. We are to inquire, then, whether the injury of which plaintiff complains was caused by the negligence of the defendant, or by the contributory negligence of the plaintiff. 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
The next inquiry is, whether it was such negligence on the part of the defendant to pile the ties in the car without blocking, under the circumstances indicated, as would render it liable for the injury the plaintiff incurred. It is the duty of the master to conduct his business, or the work in which he is engaged, so as not to expose his servants to risks or dangers which may be guarded against, or avoided, by the exercise of due care. His duty in this regard is the same as devolves upon him to select competent servants, or supply them with appliances suitable to do the business or work in which they are engaged. If the mode of doing the work is dangerous, and not apparent, he is bound, if the servant is inexperienced, and does not comprehend it, to point out and explain such danger so as to enable him to understand it and do the work safely. But when the mode of doing the work requires no particular skill or experience, and the liability to injury can only arise from its negligent performance, or where the doing of such work in some other mode may be less secure, but the increased risk is apparent and understood by any one of ordinary sense and intelligence, if the servant voluntarily undertakes it, the master is not liable for an injury resulting to him. The evidence shows that the usual mode of piling ties was by blocking them as they were piled, and that this mode was pursued until the last car was reached and partially loaded, when the foreman told the men to hurry up and