135 P. 206 | Or. | 1913
delivered the opinion of the court.
It appears from a transcript of the testimony that the defendant erected at Portland, Oregon, a powerhouse a part of which was constructed of concrete. From an adjacent railway line the defendant also built a spur track on sharp reverse curves, but so arranged that freight-cars could be run from the main line south into the power-house through a door near the northwest corner of that building. This spur track at and for some distance north of the power-house rested on timbers supported by piling driven into the ground. From one tier of capped piling to another were placed heavy timbers across which were laid ties, and to the top of the latter the rails forming the track were spiked. The plaintiff on November 25,1910, was in the defendant’s employ and engaged in carrying in his arms or on his shoulders, from the specified door
The testimony of the defendant’s witnesses is to the effect that the spur track is about 10 feet wide; that fastened near the end of the ties and about 2 feet out
It is contended by defendant’s counsel that an error was committed in refusing to grant a judgment of non-suit when the plaintiff had introduced his testimony and rested. As the chief grounds urged in support of the motion are also assigned as errors to parts of the court’s charge, the latter specifications will alone be considered.
The instructions to the giving of which exceptions were taken by defendant’s counsel are to the effect that the testimony disclosed that plaintiff’s cause of action was governed by the provisions of Chapter 3, Laws Or. 1911, page 16, and generally known as the Employer’s Liability Act; that such statute declares that when any structure is erected more than 20 feet above the ground and is used for scaffolding purposes it is the duty of the master to place thereon a guard
In the title of the act as printed, a line was evidently omitted by inadvertence. The correct inscription should read as follows: “An act providing for the protection and safety of persons engaged in the construction, repairing, alteration, or other work, upon buildings, viaducts, tanks, stacks and other structures, or engaged in any work upon or about electrical wires, or conductors or poles, or supports, or other electrical appliances or contrivances carrying a dangerous current of electricity or about any machinery or in any dangerous (occupation, and extending and defining the
The enactment in question as far as deemed involved herein follows:
“All owners * * engaged in the construction * * of any building * * shall see that all * * scaffolding, staging or other structure more than twenty feet from the ground or floor shall be secured from swaying and provided with a strong and efficient safety rail or other contrivance, so as to prevent any person from falling therefrom # * and generally all owners * * having charge of * * 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 * * and without regard to the additional cost of suitable material or safety appliances and devices”: Section 1.
“In all actions brought to recover from an employer for injuries suffered by an employee the negligence of a fellow-servant shall not be a defense where the injury was caused or contributed to by any of the following •causes, namely: Any defect in the structure, materials, work, plant or machinery of which the employer or his agent could have had knowledge by the exercise of ordinary care; the neglect of any person engaged as superintendent, manager, foreman or other person in charge or control of the works, plant, machinery or appliances; the incompetence or negligence of any person in charge of, or directing the particular work in which
“The contributory negligence of the person injured shall not be a defense, but may be taken into account by the jury in fixing the amount of the damage ’ ’: Section 6.
It will be seen that the instructions given practically accord with the language of the Employer’s Liability Act. It is argued by defendant’s counsel, however, that the phrase “or other structure more than twenty feet from the ground or floor,” as used in the statute under consideration, comprises general words follow-' ing the enumeration of “scaffolding” and “staging” which are words of particular and specific meaning, and, such being the case, the general words “or other structure” should not be construed in their broadest signification, but ought to be interpreted as applying only to the class of “scaffolding” and “staging” which are the things specifically mentioned as antecedents in the act. As a usual rule for ascertaining the general import of languáge employed in a statute, it must be admitted that there is much force in the construction invoked; but, however this may be, it is believed that the exception to the usual precept, which was recognized by the trial court, is controlling. As we understood the testimony, all of which has been carefully examined, the power-house had not been completed when the plaintiff was injured. The spur track, though built as a railroad, had never been used as such prior to the accident, except that push-cars had been
Until the trestle was used for the purpose for which it was built and as long as it was employed as a means of erecting the power-house, it was pro Jiao vice scaffolding, staging, or, as denominated by the court, a platform upon, along, and over which the defendant’s foreman in charge of the work directed the plaintiff to perform his labor; and, as the place from which he fell was more than 20 feet above the surface of the ground it was incumbent upon the defendant to place and maintain a guard-rail or other contrivance until the building was completed or until there was no further use for the trestle as a means to that .end.
It is believed that no error was committed in charging the jury as complained of or in refusing to give the instructions requested.
It follows that the judgment should he affirmed and it is so ordered. Affirmed.