140 P. 990 | Or. | 1914
delivered the opinion of the court.
It appears from a transcript of the testimony, given at the trial, that the defendant owns and operates at Lebanon, Oregon, a mill in which lumber is manufactured. For that purpose logs are hauled from a pond in which they are stored into the mill, where they are arranged in a row on a platform, one edge of which is
The plaintiff’s husband, who, when he was injured, was 28 years old, had been employed by the defendant at its mill yard 2% months when, without any previous experience, he was put to work as ratchet setter on the
W. 0. Robertson, who had been employed in defendant’s mill nearly 4 years as sawyer, but who was not thus engaged at the time of the accident, testified, as plaintiff’s witness, that the friction gear had been caught and bound several times, in consequence of which the chain referred to had been broken.
L. W. Anderson, who had also been employed in that mill and worked on the carriage about 2 months prior to the injury, testified that during such interval the friction gear had been caught several times, thereby breaking the chain connected with the canting gear.
W. B. Chance, a deputy labor commissioner, as defendant’s witness, testified that a day or two before the accident he examined the. defendant’s mill, and, concluding from the investigation that the machinery and appliances therein conformed to the requirements of the statute relating to factory inspection, he caused
An exception having been taken by the defendant’s counsel to a part of the court’s charges, it is contended that an error was committed in instructing the jury as follows:
“In this case there has been introduced written evidence in the form of a factory certificate issued by the state labor commissioner of Salem, Oregon, and the purpose of this bit of evidence is to aid the jury, if possible, in disclosing the motives of the witness Chance who testified. You heard his testimony, and the certificate is before you as a part of the evidence in the case. It is a certificate to the effect that the law known as the factory act has been complied with. The factory act is not the law under which this action has been brought, and the labor commissioner of the state is not the official nor the tribunal to determine whether or not the plaintiff has proven her case which you are to try. That province is exclusively yours, and it becomes your duty, in the light of the instructions which I am giving you as applied to the evidence in the case, to pass upon that question; the effect and value of the
It is argued that tbe jury should have been told that the certificate afforded prima facie evidence of a compliance with the provisions of the act referred to, as declared therein: Section 5046, L. O. L. It does not appear from the bill of exceptions that any request was made for an instruction announcing the degree of proof which such certificate imparts, and, this being so, can it be said that the portion of the charge herein-before quoted was an incorrect statement of the law as applied to the facts involved? It was certainly the prerogative of the jury to determine from the evidence produced whether or not the defendant had been negligent, and, if so, whether its carelessness was the proximate cause of the injury. What the court said with respect to disclosing the motive of the witness Chance, the deputy labor commissioner, may have alluded to his lack of information as to the condition of the pulleys and the breaking of the chain, of which facts he had no knowledge when he issued the certificate. But, however this may be, the challenged instruction in its entirety appears to be a correct narration of the legal principles applicable to the testimony on this branch of the ease.
“If in this case you should find that the defendant had not violated any statute relative to its machinery, then I instruct you that, if a servant voluntarily continues, however, without complaint or objection, after knowledge or notice of existing risks, under conditions by which he is chargeable with an appreciation of the danger, and where ordinary prudence would require
Section 1 of the Employers’ Liability Act enumerates the kinds of construction, improvement, etc., and the classes of business to which the statute relates. It also contains a clause which reads:
“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 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.”
Section 3 of the act puts upon the persons thus indicated the duty to see that the requirements of this statute are complied with, and for any failure in this respect such individual, when found guilty of a violation thereof, shall be fined or imprisoned, or both penalties may he imposed: Gen. Laws 1911, c. 3.
The testimony of the plaintiff’s witnesses establishes ' the fact that before McDaniel was killed the friction pulleys of the canting gear in the defendant’s mill occasionally became locked and could not he released by the lever with which they were usually controlled, because the chain leading from the spool was drawing at an angle forcing one pulley against the other and at times breaking the chain. It also appeared from such testimony that in other sawmills in Oregon, having similar canting gear, a block and sheave, iron rolls, or other mechanism was in use whereby the chain passing over such appliance was necessarily wound upon the spool in such manner as
The instruction requested was predicated upon the theory that, if the jury “should find that the defendant had not violated any statute relative to its machinery, ’ ’ then they should determine that certain consequences would necessarily follow. The fault of this proposed instruction lies in the fact that it does not state any of the obligations put upon an employer by statute, thereby designing to have submitted to the jury a question of law. If the requested instruction had been free from the objection adverted to, it would have been inappropriate, for in Schulte v. Pacific Paper Co., 67 Or. 334 (135 Pac. 527). Mr. Justice Eakin, in referring to the Employers’ Liability Act, says:
‘ ‘ The effect of the statute is to eliminate the defense of the assumed risk in the actions within it. ’ ’
See, also, Dorn v. Clarke-Woodward Drug Co., 65 Or. 516 (133 Pac. 351). No error was committed in refusing to charge as requested.
“The manner in which you shall assess damages, if you assess any, must be, not what the deceased would have earned had he lived for the balance of his expectancy, but what he would have saved or probably left as an estate, as represented by his net savings, and which would have gone for the benefit of-his estate; and, in ascertaining what the deceased would have saved, I instruct you that you should take into consideration his age, his ability, his disposition to
An exception having been taken to the action of the court in this respect, it is insisted that an error was thereby committed. Whatever may formerly have been the rule in Oregon as to the manner of ascertaining the measure of damages sustained by the death of a person when caused by the wrongful act or neglect of another can have no application to the statute now in force. Under the prior enactments of this state the injury thus occasioned constituted a damage to the estate of the deceased for the recovery of which an action could be maintained only by his personal representatives: Section 380, L. O. L. The Employers’ Liability Act gives to certain enumerated persons the damages thus sustained, thereby necessarily excluding the decedent’s estate, unless there is in existence none of the relatives named, or the residence of the person entitled to the damages is in some foreign country so remote as to render it extremely difficult for him to prosecute an action, amounting almost to a denial of justice, in which case a personal representative can maintain an action under Section 380, L.' O. L.: Statts v. Twohy Bros. Co., 61 Or. 602 (123 Pac. 909). The cause herein is prosecuted by the widow of the person killed, who alone is entitled to the recovery which is unlimited in amount, and not restricted by the damages which the decedent’s estate may have sustained, but is to be measured by the pecuniary loss suffered by the person entitled thereto: McFarland v. Oregon Elec. Ry. Co., 70 Or. 27 (138 Pac. 458); McClaugherty v. Rogue River Electric Co. (Or.), 140 Pac. 64.
Affirmed.