121 P. 801 | Or. | 1912
delivered the opinion of the court.
The facts, as developed by the record in this case, are substantially these: In the defendant’s sawmill the lumber, as it comes from the main saw where it is first manufactured from the log, is deposited on what is called a sorting table about 300 feet long by 30 feet wide and about 2 feet high. On this sorting table are chains running parallel with the longest dimension, which carry the lumber to employees stationed along
“Any person, firm or corporation or association operating a factory, mill or workshop where machinery is used, shall provide and maintain in use * * reasonable safeguards for all * * live rollers * * and machinery of other or similar description which it is practicable to guard and which can be effectively guarded with due regard to the ordinary use of such machinery and appliances, and the dangers to employees therefrom, and with which the employees of any such factory, mill or workshop, are liable to come in contact while in the performance of their duties. * * If any machine is not safeguarded as provided in this act, the use thereof is prohibited, and a notice to that effect shall be attached thereto by the employer immediately on receiving notice of such defect or lack of safeguard, and such notice*178 shall not be removed until said defect has been remedied or the machine safeguarded as herein provided.
It remains to consider the defense that the injury was caused by the negligent act of a fellow servant of the plaintiff. In Mast v. Kern, 84 Or. 247 (54 Pac. 950: 75 Am. St. Rep. 580), it is said that: “If the act is one pertaining to the duty the master owes to his servant, he is responsible for the manner of its performance, without regard to the rank of the servant or employee to whom it is intrusted; but, if it is one pertaining only to the duty of an operative, the employee performing it is a fellow servant with his colaborers, whatever his rank, for whose negligence the master is not liable.”
The precedents cited by the defendant are either common-law actions or rest upon a statute entirely different from our own.
It follows that the judgment of the court below must be affirmed. Affirmed.