70 P. 529 | Or. | 1902
after stating the facts, delivered the opinion of the court.
There is some controversy in the authorities as to whether under any circumstances the doctrine is applicable in an action by an injured servant against his master. But if it can be invoked in such an action at all, it is manifest that, when the servant is injured from a defect in the machinery operated by him, it can apply only where the physical facts themselves speak of the negligence of the defendant, and not, as in the case at bar, merely show the happening of the accident. The mere circumstance that a servant is injured by defective machinery, or appliances used by him does not prove negligence or want of care'on the part of the master: 1 Bailey, Mast. & Serv. § 1597; 20 Am. & Eng. Enc. Law (2 ed.), 87; Simpson v. Locomotive Works, 139 Pa. 245 (21 Atl. 386); Texas & Pac. Ry. Co. v. Barrett, 166 U. S. 617 (17 Sup. Ct. 707); Patton v. Texas & Pac. Ry. Co. 179 U. S. 658 (21 Sup. Ct. 275); Wojciechowski v. Spreckles Ref. Co. 177 Pa. 57 (35 Atl. 596); Brownfield v. Chicago, R. I. & P. R. Co. 107 Iowa, 254 (77 N. W. 1038); Olson v. Great North. Ry. Co. 68 Minn. 155 (71 N. W. 5.)