133 P. 647 | Or. | 1913
delivered the opinion of the court.
There is nothing in this case to show that the wearing of shoes with spikes in their soles would have been of any protection to the respondent. There was also an unsuccessful attempt on the part of the respondent to show that there was a general custom or usage prevailing among sawmill men to furnish their employees, who handled lumber that is wet and slippery, what are referred to in the complaint as loggers ’ or lumber
The court below instructed the jury that they should disregard the evidence in regard to the alleged custom or usage concerning the furnishing by millmen to their employees, or the using by employees of spiked or calked shoes or boots when handling lumber, if they found that said supposed custom or usage was testified to by only one witness. The jury knew that only one witness testified to such supposed custom or usage; and hence must have disregarded all evidence concerning that subject.
The plaintiff was about twenty-four years of age when he was injured; he was a foreigner and had had no experience in working about mills or in handling
The evidence of the respondent and Cookoolos tended to show that the pile of lumber upon which they were working had been dumped on the ground from a car; that the pile was from eight to ten feet high; that it was piled loosely; that it was wet and slippery; and that they had first stood on the ground and segregated the lumber; that a short time before the accident complaint was made to them that they were not earning their wages; that the foreman, John Bryant, went to where they were working and called them “God damned sons-of-bitches,” and ordered them to go on top of the pile of lumber and to work from the top of the pile; that they at once obeyed the orders, mounted -the pile, and successfully carried two boards from the top of the pile; that they took hold of a third plank, respondent carrying one end and Cookoolos the other; that the respondent slipped and fell and Cookoolos fell also; and that by this fall the respondent was seriously injured. The lumber in this pile was more or less wet and slippery, and the planks were
The evidence shows that the lumber in this pile was more or less wet and slippery; that the logs from which it was sawed were drawn from the millpond and sawed; the lumber was then loaded into a car and run out and dumped on the ground in a large pile, in all kinds of shapes. The evidence shows that the respondent was without experience and ignorant of the dangers incident to the work in which he was engaged, and that the appellants’ foreman, Mr. Bryant, knew this.
Neither the appellants nor their foreman instructed or warned him of the dangers incident to his standing or working on the top of the dump of lumber and segregating the lumber from that position. We believe from the evidence that the top of said dump of lumber was not a reasonably safe place for the respondent to work segregating said lumber, considering the manner in which the lumber was piled and that it was more or less slippery.
The place where the respondent was injured appears not to have been a reasonably safe place in which to work, and he was ignorant and incompetent and not warned by the appellants of the danger incident to his working there. Ordering him to work there under the circumstances was negligence, and the appellant did not assume the risk incident to the work, nor was he guilty of contributory negligence in working there under the circumstances.
It is elementary law that the master must furnish the servant a reasonably safe place in which to work, and that if he fails to do so he is guilty of negligence. This is a positive duty of the master, and it is not one of the risks or perils assumed by the servant by his contract of employment: See 20 Am. & Eng. Ency. of Law (2 ed.), pp. 55-57; Johnson v. O. S. L. Ry. Co., 23 Or. 94 (31 Pac. 283); 26 Cyc. 1097-1101.
Bailey, in his work on Personal Injuries, vol. 2 (2 ed.), page 954, says: “On the other hand, if a servant, because of inexperience which is known to the
The first part of this charge refers to ordinary risks which the servant assumes, and the latter part to extraordinary risks which the servant does not impliedly assume. It is the latter part of the charge to which 'the appellants object, which is as follows: “The law also provides that if a master directs his servant to do certain work in a manner not reasonably safe, and the performance of the work in the manner directed is the proximate cause of injury to the servant, the master is guilty of actionable negligence.” • This charge should be construed with reference to the facts of this case, and construing in that manner it is correct. The direction referred to in the charge had reference to the order of the appellants’ foreman, Bryant, requiring the respondent to mount the dump of lumber and to work from the top of the pile, which was not a reasonably safe place to work; and the ignorance and inexperience of the respondent, and the fact that he was not warned of the danger incident to working in a dangerous place, are to be taken into account in construing it. When a master orders an ignorant and inexperienced servant to work in a place that is dangerous, without warning him of the dangers incident to working in such a place, and he obeys the orders and
3 Bailey on Personal Injuries (2 ed.), 1339, states the rule thus:
“All cases agree that the care which a servant must exercise to preclude the defense of contributory negligence is ordinary care. Ordinary care is such as may be usually expected of persons of ordinary prudence under like circumstances, considering the perils of the*348 business.” The same book, on page 1339, states the rule thus as to ignorant servants: ‘ ‘ The degree of care required of a servant of less than average intelligence is such as men of his capacity and understanding generally exercise under like circumstances, and not such as men of average intelligence exercise. ’ ’
The second requested instruction is subject to the same objections as the first, excepting that it requires only reasonable care, but it is not applicable because under the facts in this case the respondent, being an ignorant, inexperienced servant, was not required to use ordinary or reasonable care. These requested charges were properly refused.
The last two questions for consideration arise on the refusal of the court to grant a nonsuit, and on the court’s refusal to instruct the jury to return a verdict for the appellants. These points raise substantially the same question. We believe the rulings of the court to be correct. While the evidence was conflicting and the case for the respondent not strong, we believe that there was enough evidence to require the case to he submitted to the jury and to sustain the verdict returned hy the jury. The instructions given to the jury were quite lengthy and covered every point in the case, and they were fair to the appellants.
We find no reversible error, and the judgment of the court below is affirmed. Affirmed.