Burroughs v. Curtiss Lumber Co.

114 P. 103 | Or. | 1911

Mr. Justice McBribe

delivered the opinion of the court.

1. There was no error in the rejection of the testimony of Roy Crabtree. The issue raised by the answer was that plaintiff oiled this part of the machinery while it was in motion, which was contrary to orders. How anybody else may have oiled it was wholly immaterial; that some other person or persons might have been negligent in their work would not excuse plaintiff.

2. The subsequent question, “What was the proper time of day to oil the feed works?” was also incompetent, as the witness was not shown to have any knowledge on that subject.

3. The fact that he had been a laborer somewhere about the mill would not qualify him to give an expert opinion as to the management and care of the machinery.

4. There was no error in admitting the plat and model after the necessary explanations had been made. They were valuable, no doubt, in giving the jury a general idea of the situation, and the defects or omissions were so clearly pointed out that the jury could not have been misled.

5. The remark of the court that it would not be practicable to show a collar upon that size of a model was made during the ruling on the objection to testimony, and in any event it does not appear that the exception taken was intended to cover it, but was to the ruling itself and not to the language in which it was couched. Even if erroneous, it is difficult to see how it could have influenced or misled the jury who had the model before their eyes.

We find no error in the instructions of the court which were full, covering the whole case, and exceedingly fair to the plaintiff. The instruction particularly complained of correctly stated the law.

6. This is not an action begun under the act of 1907 (Laws 1907, p. 302), which provides for an action by any employee whose injury should be occasioned by failure of the employer to properly safeguard certain machinery, among which set screws are enumerated, and which makes violation of its provisions by an employer a misdemeanor, punishable by fine, and which allows an injured employee to recover to the amount of $7,500.

Counsel claims that the law makes the maintaining of a projecting set screw unlawful, and the court should have instructed the jury that the act of defendant, in allowing this screw to remain in the condition it was shown to have been in at the time of the accident, was negligence per se.

7. In Peterson v. Standard Oil Co., 55 Or. 511 (106 Pac. 337), we held that where the laws of the state, for the protection of the public, have prescribed that certain precautions shall be observed, that such requirements constitute a legislative declaration of the minimum of care necessary under the circumstances, and that a less degree is negligence as a matter of law, and conceding for the purposes of the argument that the penal provisions of the act, before alluded to, apply to a common-law action, it will be seen that there is no absolute declaration of the statute that set screws, under all conditions, shall be safeguarded. The statute only requires reasonable safeguards for these and all other machinery which it is practicable to guard.

8. It was for the jury, and not the court, to say whether it was practicable for the defendant under the circumstances to safeguard this shafting, collar, or set screw, and, if they found that it could be so protected, to predicate negligence upon the failure of defendant to use the necessary precautions. A projecting set screw upon this shafting may or may not have been necessary. A protected one or one sunk to a level with the shafting might have been better or might have been impracticable. This was a matter of evidence and entirely for the jury, and not a matter of law for the court, whether viewed from the standpoint of the statute or from that of the common law.

The judgment is affirmed. Affirmed.

Mr. Justice Burnett took no part in this decision.