123 P. 1070 | Or. | 1913
delivered the opinion of the court.
So that the question to be determined here is whether the defendant omitted to perform some duty the master owed to the servant. The plaintiff complains that it neglected to furnish wooden tamping rods, but that it furnished iron ones for the purpose of tamping the powder. It is shown by the testimony of plaintiff that proper wooden rods were furnished by defendant, but that it furnished no iron rods for tamping the powder; that the act of dislodging the powder in the hole which was being charged was a detail of the work; and that carelessness in the performance of the work was carelessness of a fellow-workman for which the defendant was not liable. It may be that the act adopted by the people November 8, 1910, providing for the protection of persons engaged in construction work (Laws 1911, p. 16), was intended to change the rule in Oregon to conform to what is referred to as the Ohio rule; but that act was adopted subsequent to the injury complained of here and is not relied on by the plaintiff.
4. The work being done that caused the premature explosion was a detail of the work: American Bridge Co. v. Seeds, 144 Fed. 605 (75 C. C. A. 407, 11 L. R. A. (N. S.) 1041). And for negligence of those performing the work the master is not liable. We find no error in the instruction complained of.
The judgment is affirmed. Affirmed.