155 P. 175 | Or. | 1916
delivered the opinion of the court.
Such persons “shall see * * that all * * wood # * or other material whatever, shall be carefully selected and inspected and tested so as to detect any defects, and all scaffolding, staging, false work or*287 other temporary structure shall be constructed to bear four times the maximum weight to be sustained by said structure; * * 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 appliances and devices”: Section 1.
Section 3 visits a criminal penalty upon such persons, and states that:
“This shall not affect or lessen the civil liability of such persons as the case may be.”
The latter section plainly continues in force the old rule that it is a nondelegable duty of the employer to furnish a reasonably safe place in which the servant is to work. The requirements of the act are simply expressions in detail of the duty thus enjoined, and are not satisfied with less than continual vigilance according to the standard of the enactment.
The complaint counts on the defendant’s negligence, not only in the original construction, but also in the subsequent maintenance of a defective instrumentality. In various forms the defendant urges that the liability act is not applicable under the pleadings, and that before it can be used as the standard by which the issue is to be determined the plaintiff must have declared upon the very language of the statute and brought himself within its letter. For instance, it criticises the averments of the complaint quoted above, and maintains that the plaintiff should have stated in so many words that the scaffolding was not constructed to bear four times the maximum weight to be sustained by such
“You never gave John [meaning, plaintiff] any instructions with reference to this oiling?
“A. Yery seldom — once or twice.
“Q. Well, did you with reference to how to do his duty?,
“A. No.”
The narrations of the witnesses are silent as to whether any instructions were given to the plaintiff about what to use. There is testimony tending to show that these boards were there in that position when the employment of the plaintiff as an oiler began, and we bhi-nk it is a fair deduction of fact which the jury was authorized to make from the circumstances that they
“If the defendant in this case furnished the plaintiff in this case a scaffolding to do his work which met the requirements of this law, as I have just read it to you, then in that respect it performed its duty toward him, and there is no negligence in the case, and your verdict must be for the defendant. If it furnished this place for him, but the plaintiff, without the knowledge of the defendant, selected instead this temporary scaffolding for his own purpose, when this other permanent scaffolding was furnished by the defendant as the one which the plaintiff was to use in performing his duties as an oiler, and as I have just said, this other temporary staging was used without the knowledge of those in charge of the work of the defendant, then the plaintiff cannot recover in this case; but, if this temporary staging was used by the oiler with the knowledge of the defendant company, and it was done habitually to such an extent that the defendant company knew that their oilers were using it habitually and permitted them to use it, then it was the company’s duty to put it in the condition which this law passed for the safety of employees required it to be in — that it should be so constructed as to bear four times the maximum weight to be sustained by it. If the defendant ^company failed to perform this duty which is by the statute enjoined upon it to perform, it was negligent without any other question in the case. This law was passed for the protection of employees and the public, and its requirements must be met, and failure to do what the statute says must be done constitute-negligence in and of itself. ’ ’
“No. 6. It is the duty of an employee, when doing such work as the plaintiff was at the time he was injured,. to exercise reasonable care and caution to avoid danger and injury to himself, and to use reasonable care and caution in looking and observing where he walks or moves, and to exercise reasonable care and caution to avoid dangers and injuries to himself.”
The enactment under consideration does not directly impose any such duty upon the employee. So far as liability is concerned, it rests primarily upon the negligence of the defendant contributing to the accident. Under the statute the heedlessness of the plaintiff is an ingredient only for the purpose of mitigating damages. The true rule was stated by-the court, in
We find no error in the record.
The judgment is affirmed. Affirmed.