142 P. 578 | Or. | 1914
delivered the opinion of the court.
The court refused to give this instruction, whereupon an exception was taken, and it is contended that an error was thereby committed.
The Employers’ Liability Act requires that all “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 appliance and devices”: Laws Or. 1911, c. 3, § 1.
Under the rule formerly prevailing in this state, as well as in other jurisdictions, it was held that a servant, when entering upon a discharge of the duties of his employment, assumed all the dangers that might result from ordinarily open and visible risks in the use and operation of the instrumentalities connected with the branch of the work in which he was engaged: Stone v. Oregon City Mfg. Co., 4 Or. 52; Viohl v. North Pac. Lumber Co., 46 Or. 297 (80 Pac. 112); Blust v. Pacific Telephone Co., 48 Or. 34 (84 Pac. 847). The legal principle thus recognized was altered by the en
This action is founded upon an alleged breach of the provisions of the enactment referred to, and as a part of the instruction requested was evidently predicated upon the doctrine of assumption of risk, which legal principle previously obtained, the court did not err in refusing to give it: Dorn v. Clarke-Woodward Drug Co., 65 Or. 516 (133 Pac. 351).
“If you should find in this case that there was negligence upon the part of the defendant company, and if you find that there was negligence upon the part of the plaintiff, and that the negligence of both concurred
The part of the charge thus complained of is founded upon another clause of the statute referred to, which reads:
“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”: Laws Or. 1911, c. 3, § 6.
If, in the part of the instruction last quoted, the court by the use of the sentence, “It is the doctrine of comparative negligence that applies in such an instance,” meant that the Illinois rule on the subject of negligence was to govern the jury in determining the issue, it is believed that the legal principle so announced, when not considered in connection with the other portions of the charge, is too narrow in its application. While this part of the instruction may not have injured the plaintiff, the rule of the state referred to might be prejudicial to a party injured by the negligence of his employer, though the person hurt might
“The doctrine of comparative negligence, as it formerly obtained in Illinois, was not left in a state of confusion and uncertainty. * * On the contrary, it is reduced to a definite formula which may be stated thus: If, on comparing the negligence of the plaintiff with that of the defendant, or the negligence of the person injured with that of the person inflicting the injury, the former is found to have been slight in comparison with the latter, and the latter gross in comparison with the former, the plaintiff may recover, provided always that the negligence of the plaintiff was slight in point of fact; that is, he was in the exercise of ordinary care, although possibly not of extraordinary care”: 1 Thomp. Com. Law of Neg., § 269.
This rule appears formerly to have prevailed in this court, which held that a plaintiff’s slight negligence, contributing to his injury, but not amounting to a want of ordinary care, would not excuse a defendant’s gross negligence: Bequette v. People’s Transportation Co., 2 Or. 200; Holstine v. Oregon & C. R. R. Co., 8 Or. 163. In a subsequent case it was suggested, however, that the doctrine of comparative negligence should be rejected as unsound in principle: Hamerlynck v. Banfield, 36 Or. 436, 441 (59 Pac. 189). Whatever s'tandard may have obtained in this state with respect to the determination of the right of the employee to damages resulting from the negligence of the employer, a new rule was inaugurated by the Employers’ Liability Act.
Construing Section 6 in connection with the other provisions thereof leads to the conclusion that the enactment makes an injury suffered by an employee, when performing the service for which he was engaged, a loss the damages resulting from which, if sustained
Omitting from instruction last complained of the sentence, “It is the doctrine of comparative negligence that applies in such an instance,” which language, if it means the Illinois rule that once obtained, is more liberal to the defendant than it had a right to insist upon, the remaining part of the charge last quoted clearly announces the rule applicable to cases of this kind under the statute in question.
It will be observed, however, that the question submitted to the jury was, How much ought the plaintiff to “pay” for his negligence? when the court evidently meant, What part of the loss should be borne by him in consequence of his negligence, if the jury found that he had not exercised ordinary care?
The use of the word “pay” did not mislead the jury, and, no error having been committed as alleged, the judgment is affirmed. Affirmed.