179 P. 265 | Or. | 1919
Evidence of what is customary in the way of protective appliances is frequently admitted as tending to indicate whether or not the employer used reasonable diligence in that regard, hut the fact that other employers in the same business are accustomed to omit or dispense with necessary and obvious safeguards, does not tend to prove the exercise of ordinary care or diligence by the defendant. In other words, a custom which habitually disregards the safety of employees, no matter how long continued or. how general, can never ripen into reasonable care: Hamilton v. Des Moines Val. R. Co., 36 Iowa, 31, 38; Austin v. Chicago etc. R. Co., 93 Iowa, 236 (61 N. W. 849); Douglas v. Chicago etc. R. R. Co., 100 Wis. 405 (76 N. W. 356, 69 Am. St. Rep. 930).
1. The servant assumes all the ordinary risks incidental to the employment in so far as those risks are known to him at the time of his employment, or could have been readily discovered by the exercise of reasonable and ordinary care for his own safety, without regard to whether or not those risks were created by the negligence of the master.
2. The servant does not assume the risk of dangers, which are not obvious, or are latent, or not readily discernible, by the exercise of ordinary care on his part.
3. He does not assume the risks arising from subsequent, special, or unforeseen negligence of the master.
4. He does not assume risks of temporary conditions, which are unusual and extraordinary, when these conditions arose after his employment and he is without knowledge of them, or they are not obvious to a person exercising ordinary care.
5. He does not assume the risk of injury, by reason of the negligence of a fellow-servant where such negligence concurs with the negligence of the master, to such an extent that but for such concurrent negligence the injury would not have happened.
6. The mere fact that the servant observed the physical conditions existing at the time of his employment, does not of itself imply an assumption of the risks of such conditions unless they were so obvious as to impress their danger upon the mind of a person of ordinary care and prudence. An employee must
In view of these fundamental rules, let us consider the testimony._ The conditions were unusual in that this was what the witnesses call a “hurry-up job”; that is, one requiring more than usual haste to complete it. It was also out of the ordinary from the fact that two gangs of men were loading through the same hatchway. It is also different from the ordinary case in that conditions were changed by putting an additional gang to work upon the lower deck after plaintiff had gone to work, and, as shown by the uncontradicted testimony of Schroeder, a witness for plaintiff, the injury was occasioned by the falling of a sack of grain sent aboard by the conveyor to the chute operated by the latter gang.
It may be said in passing that the unusual conditions above described were not embraced in defendant’s rejected proffer of evidence, as to the custom in regard to the use of safety appliances. The offer was as follows:
“Witness, if allowed to answer, would testify that it was not the usual or ordinary custom or practice in grain shipping circles, to use nets when loading over or across hatch openings to prevent wheat sacks from falling into the hold while being loaded; and witness, if permitted to answer, would testify that there were at hand a sufficient amount of hatch covers that might have been used by the employees, including the plaintiff, had they so desired, for the purpose of preventing wheat sacks from falling on the sliding-board or from the chute into the hold and that the strongbacks in the between-decks hatch openings, were placed and the covers were there on the between-deek hatch in 12 foot lengths, ready for placing over the hatchway of the between-decks in one or more sections.”
It will be observed that both these offers had reference to usual conditions and did not include the three unusual factors in the instant case, to which we have heretofore called attention.
We all know the' hold of a ship is not a place of “sweetness and light,” and that the surroundings are not usually conducive to the perception of things by casual observation. Plaintiff was there to stow cargo not to investigate conditions, and there is nothing to indicate that, in the position where he was placed and the necessity he was under of performing rapid and efficient work, his attention would have been directed to the absence of necessary protective apparatus.
It will also be observed that the accident occurred by reason of a change of conditions which arose after he began his employment. The hazard was increased by reason of another gang being put to work at the
While, theoretically, a laborer is a free agent, at liberty to examine and guard against danger occurring, or liable to occur, in the course of his employment, and to demand requisite protection, or quit the employment or take the consequences of remaining, it is common knowledge that such a theory is to a great extent impracticable in the present busy crowded age. His freedom to select his employment is abridged by the constantly increasing numbers who must work or go hungry, and his risks are increased by the immense pressure of a tremendous commerce and the complicated methods of handling it. Under the pressure of competition f'or employment and the necessity of maintaining his place as a satisfactory laborer, he has little time for observing his surroundings, or taking or even demanding of his employer, those precautions for his safety which a human regard for his welfare ought to be furnished without demand.
These and like considerations have, no doubt, had their influence with the most enlightened and progressive jurists, in declaring much less stringent rules in regard to assumption of risk, than prevailed in the earlier history of jurisprudence where competition in labor was less strenuous and the duty of protecting the laborer was less clearly recognized by the courts. An enlightened public sentiment has brought about the enactment of Employers’ Liability Statutes and, while they have not been extended to cover cases like the present, the common law has been gradually expanded by judicial decisions until the doctrine of assumption
Instruction (g) is so exceedingly broad as to be doubtful, but it is in favor of defendant’s contention and could therefore work it no injury.
We find no prejudicial error in the record. The verdict was for a moderate sum and in our opinion was justified by the testimony.
The judgment is therefore affirmed. Affirmed.