1. Defendant does not insist in its brief on the alleged errors of the cоurt in ruling on the testimony. Defendant insists earnestly, however, on its assigned error based on the court’s denying its motion for a directed verdiсt. Its argument in that behalf is that there is no evidence tending to show thаt defendant had any knowledge of the defective condition of the runway or hoist. It cites a number of authorities supporting its contention but none of those authorities is from the courts of this stаte. The rule of law is well established in this state that
*227
an employer must exercise every care and precaution practicable to use for the safety of life and limb of its employees and the public: Or. L., § 6785. Said Section is a part of the law knоwn as the Employers’ Liability Act (Or. L. §§ 6785-6791). The law requires an employer to exercise every reasonable care and prеcaution requisite to protect its employees and others having a duty or a legal right to be on the premises of the еmployer from injury:
Rorvik
v.
North Pac. Lbr. Co.,
.2. The instruction requested by defendant and refusеd by the court contained this language:
“But even though you should find there were protruding nails or spikes, that fact alone would not bе sufficient to entitle plaintiff to recover. "We must go further, and not only satisfy you by a preponderance of the evidenсe these nails and spikes were protruding, but that defendant cоmpany knew, or ought to have known it by the exercise of ordinary care.”
What we have said above is equally applicable to defendant’s contention regarding this requested instructiоn. The court did not err in refusing to give that instruction.
3. The instructions given by the court and excepted to were properly given. They cover a correct statement of the law regarding defendant’s liability for *228 defects in the hoist and runway. They also covered the liability of defendant toward the plaintiff. It is contended by defendant that it would not be liable to plaintiff because he was not an emрloyee of the defendant. Plaintiff was an employee, however, of a customer of defendant and was on the prеmises of defendant using its appliances while lawfully engaged in his оccupation. Plaintiff is therefore under the protectiоn of the Employers’ Liability Act: Rorvik v. North Pac. Lbr. Co., above.
4. Defendant also strenuously insists that plaintiff having accepted partial compensation from the State Industrial Accident Commission had thereby elected a remedy and could not now maintain this action. Passing without deciding thе question whether or not defendant is entitled to raise that questiоn without pleading in abatement, defendant’s position is untenable. This court has also ruled upon that identical question and we decline to re-examine it:
Hicks v. Peninsula Lumber Co.,
5, 6. It has also been ruled in this state that whether or not certain work is hazardous is a question of fact:
Wolsiffer
v.
Bechill, 76
Or. 516 (
Affirmed.