137 P. 777 | Or. | 1914
delivered the opinion of the court.
It is contended by plaintiff that under the Employers’ Liability Act, adopted by the people November 8,1910 (Laws 1911, p. 16), the defendant is responsible, and that the trial court erred in granting a judgment of nonsuit. The contention of defendant is that there was no testimony to show that Henry Lee, the head sawyer, was careless, negligent or incompetent; that if there was any negligence it was the negligence of a fellow-servant in a matter of the mere operation of machinery; that the case does not come within the provisions of the Employers’ Liability Act; that it is governed by the rule announced prior to the passage of this law in the ease of Mast v. Kern, 34 Or. 247 (54 Pac. 950, 75 Am. St. Rep. 580), and other like cases, viz., that the liability of the master depends upon the character of the act in the performance of which the injury arises, and not the grade or rank of the negligent employee. The trial court held that the case at bar did not come within the provisions of the Employers’ Liability Act; that the alleged negligence was that of a fellow-servant.
“While, as hereafter seen, the master is not in general liable for an injury happening to one' of his servants through the negligence of another of them engaged in the same general employment, yet this rule does not exonerate the master from exercising reasonable or ordinary care in the selection of competent, careful, sober, and fit servants, to the end that other servants shall not he exposed to unnecessary peril by reason of their incompetency, carelessness, drunken
If the master becomes aware that the servant has become, for any reason, unfit for the service in which he has employed him, so as to endanger the safety of other servants, it will become his duty to discharge the unfit servant; and if, failing in this duty, .one of his other servants is injured by the negligence of the unfit servant, the master will be liable.
“As a legitimate deduction from the precept last stated, it necessarily follows that, in selecting an employee whose duty it is to direct and control fellow-servants in their performance of work which is essentially dangerous, a master must exercise due or ordinary care in choosing for that purpose a person who*509 is reasonably safe and competent to execute tbe service required” — citing Smith v. St. Louis & S. F. R. Co., 151 Mo. 391, 408 (52 S. W. 738, 48 L. R. A. 368, 387).
“To propose by initiative petition a law providing for the protection and safety of persons engaged in the construction, repairing, alteration, or other work, upon buildings, bridges, viaducts, tanks, stacks, and other structures, or engaged in any work upon or about electrical wires, or conductors or poles, or supports, or other electrical appliances or contrivances carrying a dangerous current of electricity; or about any machinery or 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, and declaring what shall not be a defense in actions by employees against employers, and prescribing a penalty for a violation of the law. ’ ’
The provisions of the act, so far as deemed material in the case at bar, are as follows:
“Section 1. All owners * * engaged in * * the erection or operation of any machinery, * * or use of any dangerous appliance, * * shall see • that all metal, * * or other material whatever, shall be carefully selected * * and tested so as to detect any defects, and all scaffolding, staging, * * shall be constructed to bear four times the maximum weight to be sustained by said structure, and such structure shall not at any time be overloaded or overcrowded; * * and all dangerous machinery shall be securely covered and protected to the fullest extent that the proper operation of the machinery permits, and all*510 shafts, wells, * * shall be inclosed, and all machinery other than that operated by hand power shall, whenever necessary for the safety of persons employed in or about the same, or for the safety of the general public, be provided with a system of communication by means of signals, so that at all times there may be prompt and efficient communication between the employee or other persons and the operator of the motive power. * * ”
Here follows a regulation for the transmission and use of electricity. Then comes the following provision:
“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.”
Section 2 is as follows: “The manager, superintendent, foreman, or other person in charge or control of the construction or works or operation, or any part thereof, shall be held to be the agent of the employer in all suits for damages for death or injury suffered by an employee.”
Section 3 provides for a compliance with the act and for a penalty for a noncompliance.
Section 4 provides that, in case of loss of life by reason of the neglects or failures or violations of the provisions of the act, the heirs of the deceased shall have a right to bring the action without any limit as to the amount of damages.
Section 5 provides that: “In all actions brought to recover from an employer for injuries suffered by
Section 6 reads thus: ‘ ‘ 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 the damage.”
It will be noticed that the general provisions contained in Section 1 refer to persons having charge of or responsible for any work involving a risk or danger to employees or the public, or what is usually termed “hazardous occupations.” The employers’ liability law does not define all acts of negligence. As suggested in the title, it defines and extends the liability of employers in certain cases. It makes them responsible for an injury caused or contributed to by the negligence of the superintendent, foreman or person in charge of the machinery, or by the incompetence or negligence of the person in charge of the particular work in which the employee was engaged at the time
It is contended that the case at bar falls within the third provision of Section 5; that is, it is claimed that the injury was caused by the incompetency and negligence of Henry Lee, the head sawyer, who was the person in charge of and directing’ the particular work in which the plaintiff was engaged at the time of the injury. The act in question is broader in its scope than any other employers’ liability law that has been called to our attention. The language employed in the general clause in the latter part of Section 1 of the act is somewhat confused. It, however, provides that all owners, contractors, etc., shall use every care and precaution which it is practicable to use for the protection and safety of life and limb; hence the negligence, if any, of Henry Lee, the head sawyer, whose instructions the plaintiff was told to obey by Mr! Smiley, the secretary and manager of the company by whom plaintiff was employed, would bring the case within the statute, unless the plaintiff assumed the risk incident thereto. By the plain provisions of Section 5, the negligence of a fellow-servant is not a defense, where the injury is caused or contributed to by “the incompetence or negligence of any person in charge of, or directing the particular work in which the employee was engaged at the time of the injury or death”: Dorn v. Clarke-Woodward Drug Co., 65 Or. 516 (133 Pac. 351); Dunn v. Orchard L. & T. Co., ante, p. 97 (136 Pac. 872).
It is alleged in the complaint that the evidence tended to show that at the time of the injury complained of, the plaintiff was under the direction and
In Lucey v. Stack-Gibbs Lbr. Co., 23 Idaho, 628 (131 Pac. 897, 900, 46 L. R. A. (N. S.) 86), without applying a statute like ours, it was held that it is a general rule of law that, when a master is engaged in a complex and hazardous business, he must promulgate such rules and regulations for the conduct of his business and the government of his servants in the discharge of their duties as will afford reasonable protection to them, and that it is the duty of the master to use reasonable care to see that such rules are complied with, and that, if he fails to do so, he will be responsible for injuries resulting from failure of compliance. Much to the same effect, see Potlatch
Viewed in the light of the general rule first referred to, and prevailing for years in many of the states, it
“But, as applied to transcribed statutes, this rule is undoubtedly subject to important qualifications. Whilst admitting that the construction put upon such statutes by the courts of the state from which they are borrowed is entitled to respectful consideration, and that only strong reasons will warrant a departure from it, its binding force has been wholly denied, and it has been asserted that a statute of the kind in question stands upon the same footing, and is subject to the same rules of interpretation, as any other legislative enactment.”
It follows that the judgment of the lower court must be reversed, and the cause remanded, for such further proceedings as may be deemed proper, not inconsistent with this opinion. Reversed and Remanded.