152 P. 243 | Or. | 1915
delivered the opinion of the court.
*609 “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.”
The earlier part of the section lays its injunction upon “all owners, contractors, subcontractors, corporations or persons whatsoever engaged in the construction, repairing, alteration, removal or painting of any building, bridge, viaduct or other structure.”
A statutory duty is imposed upon the persons and coi’porations included within the purview of this statute. Although a plaintiff may be in the employ of those controlled by the law at the time of receiving an injury, his right to recover does not depend upon the contract of employment which the parties have made. It rests solely upon the legislative mandate the violation of which is a tort and not a breach of the contract. The law is not affected by the contract and a disobedience of the statute is not an infraction of the agreement. The instant case is an action for tort.
Section 358, L. O. L., says:
“An action may be maintained against any of the organized counties of this state upon a contract made by such county in its corporate character, and within the scope of its authority, and not otherwise.”
These are plain words, and exclude an action for tort, unless the right to maintain the same can be derived from the Employers’ Liability Act. It is the settled rule in this state that neither the state itself,
*611 “Nor is the state within the pnrview of a general law regulating the rate of interest upon money due or to become due, and this goes upon the ground that a sovereign is not bound by the words of a statute unless it is expressly named [citing authorities]. That the county is but the agent or instrumentality of the state, constituted and employed essentially for the promotion of its general government, and therefore subject tc like rules and restrictions governing its liabilities as of the state, there can be no controversy.”
The judgment of the Circuit Court is reversed.
Beversed.