143 P. 938 | Or. | 1914
delivered the opinion of the court.
The defendant, on December 12, 1912, hauled, on one of such unloaded trucks, to the incline an iron spool, called a gypsy, having through the center a hole into which the spindle of a donkey-engine was to be inserted. The defendant’s superintendent directed that the spool should be unloaded and taken to the place where it was to be used at the top of the incline. An iron bar was inserted in the hole in the gypsy, and, the brakemen assisting in raising the spool, one end of the bar was placed on the plaintiff’s shoulder while the other end rested on the shoulder of the head
The plaintiff testified in effect that when ordered by the defendant’s superintendent to unload the spool, the witness, suggested that it should be rolled off the truck, but the head loader notified him that the gypsy should be carried to the donkey-engine at the top of the incline; that he estimated the weight of the spool to be 250 or 300 pounds, but did not know the weight thereof or the danger to be incurred in attempting to obey the order of the head loader; that when he reached the proper place to leave the truck he notified his assistant that he was then to step to the brow skid; that the defendant’s superintendent, who was present and saw the witness attempt to comply with the direction given, did not warn him of the danger to be incurred, or direct a different method of removing the spool.
The plaintiff was probably a competent loader and knew how properly to discharge the duties devolving upon him with respect to placing the logs on trucks for' transportation. He had never had any experience, however, in unloading gypsies from cars, and having been informed that the spool was to be carried
“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 f oy 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”: Gen. Laws Or. 1911, p. 16.
“This statute does not cover every case of an employers’ liability to his employee, but only the specific cases enumerated in the act. ’ ’
In Schaedler v. Colmnbia Contract Co., 67 Or. 412, 418 (135 Pac. 536, 538), in adverting to the same statute, it is said:
“A careful examination of Section 1 of the act will convince any disinterested person, who is learned in the law, that there are many causes that might produce a personal injury to an employee that are not specified in that provision of the statute. In order to recover damages not thus enumerated, resort must be had to the principles of the common law.”
It is believed that the quoted part of the act in question amounts to nothing more than a reiteration of the preceding provisions of the section, and that the unloading by mere manual labor of the gypsy in the manner and under the circumstances indicated does not come within the provisions of the Employers ’ Liability Act. A contrary conclusion would be equivalent to holding that the enactment repealed the rules of 'the common law with respect to the recovery of damages for a personal injury.
The supposed theory upon which the instruction objected to was evidently based is a correct exposition of the law applicable to the plaintiff’s testimony which, if uncontradicted, would not have rendered the judgment invulnerable. The testimony of the head loader, Charles Josephson, is to the effect that he did not order, direct or instruct the plaintiff to assist in carrying the gypsy, but that Isaacson assumed the initiative in that manner of unloading the spool. As the testimony referred to is contradictory, the court should have instructed the jury that if they found the plaintiff was ordered to carry the gypsy by the head loader, they should determine that he was not a fellow-servant with the plaintiff at the time of the accident.
An error was committed in charging the jury, and, such being the case, the judgment is reversed and a new trial ordered.
Reversed. Rehearing Denied.