151 P. 652 | Or. | 1915
delivered the opinion of the court.
The defendants claim that the action comes within the rules of the common law and requested an instruction accordingly. The court refused this request, and instructed the jury according to the provisions of the Employers’ Liability Act. The defendants assign this as error.
“A. My orders was, when I went out of the bam, by the bam boss, Mr. Schaer, to get the load as soon as possible, and he would wait for me up to the barn. And I went down, and I can’t remember whether I took down a load of lumber to the planing-mill or not; but anyway I went and got the load of wood as soon as I could get it, and come up to the driveway you are supposed to drive into, and it was blocked with three truck-loads of lumber, two side by side, and the other in ahead. I forget which side of the driveway they*450 were on, bnt two side by side here, and the other one over on this side, and you couldn’t get through with one horse single, and Swanson, one of the teamsters, was down by the mono-rail, and I stopped my team by the first turn as I got up on the main driveway, and Swanson, knowing what the orders was, hollered for me to come up. I hollered up, ‘Is it open?’ and he says it was not open, ‘but there is one; I will pull it across so as to let you through, ’ which he did. He passed me just around the corner from the mono-rail. I turned and started down under the mono-rail and sat down on the foot-rest or seat, whichever you might call it, to avoid danger. No breeching on my harness, no brake on the wagon, and no self-guard for a man whatever, not even a finger hole to grab hold of, unless you grabbed hold of the wagon. In going down I had the lines in both hands to hold the horses, they were a little hard in the mouth, and that load crowding them there, and they were not deadheads, wouldn’t stand no whip, they got to going, and no foot-rest — there is a chain that holds up the tongue, that runs out in front, that is the only foot-rest there is. * *
“Q. Gro ahead and tell what you did.
“A. Well, that is all the foot-rest you’ve got, and when I got down the hill it tipped so I was practically off the seat, and I knew what the result would be if I fell. I would get run over, if I didn’t get kicked to pieces by that fractious horse. * *
“A. I was practically off the seat when I got down this first driveway. This first incline to show you here. I took my hand up on this, holding the lines in one hand, to pull myself up, and I wouldn’t be positive somebody hollered, which was frequently done if they wanted one of the teamsters, or whistle, and in case they don’t hear, they might see them and motion to come there, and at the time I pulled myself up, thinking that hollering was behind me. Why then, as I pulled myself up, the timber must have hit me in the head and drove my face right into the front end of the load of wood.”
There is little room for argument but that the work was dangerous and the place unsafe to drive a team and wagon under timbers with a space of only about 6 inches between the top of the wagon-bed and the timbers. It would seem that the other accouterments com
We find no reversible error in the record. The judgment of the lower court is therefore affirmed.
Affirmed.