Davis v. Carlton Lumber Co.
151 P. 650
Or.
1915
Check Treatment
Mr. Justice Bean

delivered the opinion of the court.

The. sole question contended for in this case is whether or not the same comes within the provisions of the Employers’ Liability Act (Laws 1911, p. 16). The pleadings and the evidence in this cause bring the same within the scope of the above act: Schulte v. Pac. Paper Co., 67 Or. 334 (135 Pac. 527, 136 Pac. 5). The proof fairly shows that the work in which the plaintiff was engaged at the time of the injury involved a risk or danger inherent therein. It appears that the walk for the teamsters beside the roadway, which had sharp curves and angles, was- too narrow for safety; that other workmen had been knocked therefrom by loads of timber; and that the walk could have been widened; and the efficiency of the structure still have been preserved. It is shown that waste material was allowed to accumulate on the walkway; that the truck had no brake or contrivance to keep the same from being thrown violently around across the pathway; that it was practicable to use instrumentalities which would have steadied the load and prevented it from swinging; that one of the horses in the team was fractious. The jury could fairly find under all the circumstances that on account of the negligence of the owner the premises were not a safe place for the plaintiff to work.

Section 1 of the Employers’ Liability Act, after making specific requirements, contains the following command:

“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 *445the 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.”

It is the position of counsel for defendants that the case does not come within either the specific provisions or the general clause of the act. It may now be regarded as settled by the decisions of this court that the general clause of the law quoted above is not restricted to the particular persons and acts mentioned in the first part of the section, but that it amplifies the scope of the statute, by extending its injunction to all persons having charge of or responsible for any work involving a risk or danger to the employees or the public: Dunn v. Orchard Land & Timber Co., 68 Or. 97 (136 Pac. 872); Heiserv. Shasta Water Co., 71 Or. 566 (143 Pac. 917); Reed v. Western Union Tel. Co., 70 Or. 273 (141 Pac. 161); Browning v. Smiley-Lampert Lumber Co., 68 Or. 502 (137 Pac. 777); Hartman v. Oregon Elec. Ry. Co., ante, p. 310 (149 Pac. 893). In other words, that meaning should be given to the clause quoted which its language plainly imports. It directs that, in the kind of work described therein, every device, care and precaution shall be used which it is practicable to employ. When it is averred and proved that in hazardous employments, coming within the purview of such clause, an injury to life or limb results on account of the neglect to use such devices and care, when the same could have been done practicably without destroying the efficiency of the apparatus used or impairing the result of the work, the persons named are liable to respond in damages therefor.

The cause having been properly tried under the statute, there was no error in the refusal of the trial court *446to instruct the jury according to the rules of the common law upon the questions of assumption of risk and contributory negligence.

Finding no error in the record, the judgment of the lower court is affirmed. Affirmed.

Mr. Justice McBride did not sit.