75 P. 703 | Or. | 1904
delivered the opinion of the court.
This is an action by Louis Ringue, by his guardian ad litem, against the Oregon Coal & Navigation Company, to recover damages for an injury alleged to have been caused by the negligence of the company. The complaint is, in substance, that on and prior to November 21, 1901, the plaintiff, a minor fourteen years of age, and Julien Ringue, his father, were employed in defendant’s mine in Coos County as common laborers, engaged in mining coal and loading it in cars, for which the father'received one dollar per ton ; that on the day named, while the plaintiff was going to the place of his work, a portion of the roof of the gangway along which he was passing fell, owing to the neglect and carelessness of the defendant, and injured him. The answer admits the accident to the plaintiff, but denies his employment by the defendant and the negligence charged. For affirmative defenses it alleged (1) that plaintiff was not in the employ of the defendant at
The testimony on the trial tended to show that for several years prior to the accident the plaintiff’s father had been working for the defendant as a coal miner, receiving as a compensation one dollar a ton for all coal mined and loaded on the cars; that it was a custom or practice for fathers employed by the defendant, who desired to have their minor sons assist them at their work, to obtain from the bookkeeper an order on the blacksmith for a half set of tools, and to request the underground boss to furnish an extra car for the boy; that for some time before the accident the plaintiff, at the request of his father, and with the knowledge and acquiescence of the officers of the company, assisted his father in his work, and the company furnished extra cars for his use, and paid the father for
The court, in its instructions, stated that one of the material issues in the case was the alleged emplojunent of the plaintiff by the defendant; that upon such issue the burden of proof was with the plaintiff, and he must show an employment before he could recover. Upon this point it charged the jury that if they found from the evidence “that plaintiff’s father was employed by the defendant, and, by the terms of such employment, plaintiff was to assist the father in such work, and plaintiff entered the mine under such employment, and with permission of defendant, it would be the duty of the defendant to exercise reasonable care in maintaining a place for his work,” etc.; that, if there was an employment of the plaintiff the defendant, and “the accident occurred through some defect in the mine, which the defendant should have provided against,” etc., it would be necessary for them to ascertain the amount of damages suffered by the plaintiff; that, if the plaintiff was not rightfully in the mine at the
In Tennessee Coal Co. v. Hayes, 97 Ala. 201 (12 South. 98), the plaintiff’s father was employed to load defendant’s cars at a .specified price per car. His minor son, while assisting him in his work by the direction and under the supervision of an agent of the defendant, was injured ; and it was held that the son was a servant of the defendant, although his name was not on its pay roll, and his father received the compensation for his services, the court say^ ing: “The defendant had the benefit of plaintiff’s labor thus induced and assented to by its authorized agent, and performed with his knowledge and under his supervision, if the facts be in line with this tendency of the evidence, which was a question for the jury. That this evidence, if believed, established the relationship of master and servant, within the meaning of the act referred to, between the defendant and the plaintiff, is, we think, clear. That plaintiff’s name was not on defendant’s pay roll, and that he personally received nothing from defendant for his labor, has no bearing on the question. He was a minor, and his father was entitled to his time and to the rewards of his labor. The payment of compensation for his services to his father was as if it had been paid directly to him, so far as the fact of payment bears upon the question of the relationship between him and the defendant corporation. Here, then, on this aspect of the evidence, we have an employment by the defendant in accordance with defendant’s directions, and payment for that work, in legal effect, to the person employed, and who performed the
Under the law, therefore, even though there was no direct contract of employment, the plaintiff was entitled to the protection of a servant, if, with the knowledge and consent of the defendant, he was in the mine for the purpose of rendering services for its benefit, and the case should have been submitted to the jury upon that theory. The instructions as given, however, were to the effect that plaintiff could not recover unless he was actually employed by the defendant, or was authorized, under the terms of
The defendant insists that, notwithstanding any errors which may appear in the record, the judgment should be affirmed, because the accident to the plaintiff was npt due to the negligence or carelessness of the defendant, and that plaintiff was himself guilty of contributory negligence. The first point is disposed of by the fact that the bill of exceptions does not purport to contain all the evidence, and the second was a question for the jury. The judgment is reversed, and a new trial ordered. Reversed.