209 P. 470 | Or. | 1922
It becomes important at the outset to inquire as to the extent to which an employer may be held liable under the provisions of the Workmen’s Compensation Act in those cases where he has expressly notified the Industrial Accident Commission that he declines to avail himself of its provisions. In the case at bar the defendant had expressly notified the commission of its intention not to be so bound and therefore, by the provisions of Section 6620, Or. L., it is deprived of the defenses of assumption of risk and contributory negligence, except so far as the jury may take contributory negligence into consideration as reducing the quantum of damages.
“ ‘Factories’ mean undertakings in which the business of working at commodities is carried on with power-driven machinery, either in manufacture, repair or change, and shall include the premises, yard and plant of the concern.
“ ‘Workshop’ means any plant, yard, premises, room or place wherein power driven machinery is employed and manual labor is exercised by way of trade for gain or otherwise,” etc.: Section 6619, Or. L.
It is shown by the evidence that part of the business carried on by the defendant was the manufacture of sausage through and by the use of “power-driven machinery,” and by the terms of this act, this part of the business is a hazardous occupation. It may not usually be so in fact, but it is always so in law, so far as the act we are now considering is concerned. Part of plaintiff’s duties, in fact the greater part was performed about and upon this machinery and in the room where it was operated, the work in which he was engaged when the accident occurred being only occasional, perhaps four or five hours during the week. Upon the undisputed testimony we must hold that for the purposes of this case the defendant was as a matter of law engaged in a hazardous occupation, and that having rejected the provisions of the Workmen’s Compensation Act, it is precluded from urging the defenses of contributory negligence and assumption of risk; and the fact that plaintiff was not actually engaged in the operation of power-driven machinery when the injury occurred will not of itself relieve the defendant from liability, provided the other elements of recovery are present: Morin v. Nashua Mfg. Co., 78 N. H. 567 (103 Atl. 312); Casey v. Frank Jones Brewing Co., 79 N. H. 42 (104 Atl. 454).
Laying the defenses of contributory negligence and assumption of risk out of the case, we are satisfied that there was sufficient evidence of negligence on the part of defendant in the matter of furnishing plain
Error is also predicated upon the giving by the court of instructions excluding the defenses of contributory negligence and assumption of risk, but that objection is based upon a view of the law which we have already held to be erroneous.
The judgment is affirmed. Affirmed.