BEAN, J.
At the close of plaintiff’s ease counsel for defendant moved for a judgment of nonsuit. The motion was denied. Defendant assigns this ruling as error, and submits that the evidence in the case does not disclose any negligence, or any facts from which negligence might be inferred.
The rule is stated in Geldard v. Marshall, 43 Or. 438, at page 443 (73 Pac. 330, 331):
“It is the duty of a master to exercise reasonable care to furnish his servant with a reasonably safe [550]*550place in which to work, and reasonably safe appliances and instrumentalities to work with, and to keep them in that condition. For a failure in either of these respects he is liable to an injured servant who is himself free from negligence, unless the defects are' known to or plainly observable by him: Miller v. Inman, 40 Or. 161, 165 (66 Pac. 713). In an action by a servant against his master to recover damages for an injury, the burden of proof is on the plaintiff to show the negligence charged, and the mere happening of the accident is ordinarily not sufficient: Duntley v. Inman, 42 Or. 334 (70 Pac. 529). But it is not necessary that there should be positive proof of negligence. It, like any other fact, may be inferred from the circumstances. There may be, and are, cases in which the master’s negligence is clearly inferable, although there is no positive proof thereof. The rule is that if two inferences may be legitimately drawn from the. facts in evidence, one favorable and the other unfavorable to the defendant, a question is presented which calls for the opinion of the jury. If, however, there is no proof of any fact by which the defendant’s conduct may be ascertained, there is nothing for the jury. The mere proof of an accident, therefore, ordinarily raises no presumption of negligence;'but, where it is accompanied by proof of facts and. circumstances from which an inference of negligence may or may not' be drawn, the case cannot be determined by the court as a matter of law, but must be submitted to the jury.”
See, also, Galvin v. Brown & McCabe, 53 Or. 598, 608 (101 Pac. 671); Rogers v. Portland Lumber Co., 54 Or. 387, 392 (102 Pac. 601, 103 Pac. 514); Kopacin v. Crown-Columbia Pulp & Paper Co., 62 Or. 291, 296 (125 Pac. 281); Adams v. Corvallis & E. R. Co., 78 Or. 117, 128 (152 Pac. 504). In 1 Shearman & Redfield, Negligence (6 ed.), §3, negligence is defined thus:
“Negligence, constituting a cause of civil action, is such an omission, by a responsible person, to use that [551]*551degree of care, diligence and skill, winch it was his legal duty to use for the protection of another person from injury as, in a natural and continuous sequence, causes unintended damage to the latter.”
There is some conflict in the , evidence given on behalf of plaintiff and that on behalf of defendant. This, of course, was for the jury to settle. The testimony on the part of plaintiff tended to show, and the jury might reasonably conclude therefrom, that the angle-irons mentioned were transported to the material-yard of defendant on a railroad car and were unloaded by means of a derrick in sling-load lots, of different lengths mingled together, and dumped haphazardly in piles in the material-yard; that for the purpose of being able to get the chains with which the irons were lifted, out from under them, and also for the purpose of supporting the pile, stringers were placed under each sling-load; that these stringers were usually twelve by twelve, but at the time the material in question was unloaded there were none of this size and pieces of different length and thickness were used for the purpose and were defective stringers; that the pile was six feet in height, higher than ordinarily made; that on account of the different sizes and lengths of the angle-irons and the defective and irregular stringers used in piling them, the defendant, in its haste to get the car unloaded had neglected to pile the irons in a reasonably safe or proper manner; that plaintiff in performance of his duty, in getting some of these angle-irons out of the pile for use in shipbuilding, on account of the negligent manner in which the irons were piled, was caught, as in a snare, by the pile of irons tipping over on to him, and injuring him, withóut his fault; that plaintiff was not repiling the irons [552]*552to make the pile safe; and that defendant failed to nse reasonable care to furnish plaintiff with a reasonably safe place to work.
1, 2. Indeed, the trend of the evidence was that the piles of angle-irons, as they were unloaded from the cars, were dangerous to work around. This appears to be one of the reasons for repiling them. The question of negligence does not depend on the mere happening of the accident. It was the legal duty of the defendant to exercise reasonable care to furnish the plaintiff with a reasonably safe place in which to work: Millen v. Pacific Bridge Co., 51 Or. 538 (95 Pac. 196); Woods v. Wikstrom, 67 Or. 581 (135 Pac. 192). There being’ competent evidence to be submitted to the jury, and to support the verdict, the motion for a nonsuit was properly overruled.
3. It is contended by defendant that the work in which the plaintiff was engaged at the time of the accident was for the purpose of making the place safe, and that the rule as to safe place does not apply. This contention is based upon the testimony of the defendant’s foreman. It is not in accord with that on behalf of plaintiff. The jury evidently found that .the plaintiff’s narration of the circumstances was correct, and that the foreman had not remembered all of the details. The plaintiff had a short time before, as he says, been at work repiling another pile, but was called away by the foreman and directed to help get out some angle-irons from the pile in question for use in the construction of the boat.
The facts of the case differ from those in Miller v. Hart-Parr Co., 165 Iowa, 181 (144 N. W. 589), cited and relied upon by defendant. There the evidence showed that the workmen were acting under general [553]*553orders to pile angle-irons separately and bind them with strips of wood; that plaintiff, who had thus been employed for four or five weeks, generally selected the strips which were nsed, and might have nsed larger and stronger ones; and that the condition and safety of the place was continually changing as the work progressed but contained no' hidden danger. It was held insufficient to show the defendant negligent in failing to direct the use of larger and stronger binding strips.
Here the evidence indicated that the plaintiff on the third day of his employment was directed to work with two others in getting out angle-irons from a pile that had been piled or dumped from the car the day before. He had no volition in piling the irons. He had assisted only a short time the day before, about thirty minutes, in gathering stringers to bind the pile. The testimony is uncontradicted that the kind of stringers usually used were not to be had, and the men were obliged to use the best they could get, those which were unequal in length and size and defective.
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BEAN, J.
At the close of plaintiff’s ease counsel for defendant moved for a judgment of nonsuit. The motion was denied. Defendant assigns this ruling as error, and submits that the evidence in the case does not disclose any negligence, or any facts from which negligence might be inferred.
The rule is stated in Geldard v. Marshall, 43 Or. 438, at page 443 (73 Pac. 330, 331):
“It is the duty of a master to exercise reasonable care to furnish his servant with a reasonably safe [550]*550place in which to work, and reasonably safe appliances and instrumentalities to work with, and to keep them in that condition. For a failure in either of these respects he is liable to an injured servant who is himself free from negligence, unless the defects are' known to or plainly observable by him: Miller v. Inman, 40 Or. 161, 165 (66 Pac. 713). In an action by a servant against his master to recover damages for an injury, the burden of proof is on the plaintiff to show the negligence charged, and the mere happening of the accident is ordinarily not sufficient: Duntley v. Inman, 42 Or. 334 (70 Pac. 529). But it is not necessary that there should be positive proof of negligence. It, like any other fact, may be inferred from the circumstances. There may be, and are, cases in which the master’s negligence is clearly inferable, although there is no positive proof thereof. The rule is that if two inferences may be legitimately drawn from the. facts in evidence, one favorable and the other unfavorable to the defendant, a question is presented which calls for the opinion of the jury. If, however, there is no proof of any fact by which the defendant’s conduct may be ascertained, there is nothing for the jury. The mere proof of an accident, therefore, ordinarily raises no presumption of negligence;'but, where it is accompanied by proof of facts and. circumstances from which an inference of negligence may or may not' be drawn, the case cannot be determined by the court as a matter of law, but must be submitted to the jury.”
See, also, Galvin v. Brown & McCabe, 53 Or. 598, 608 (101 Pac. 671); Rogers v. Portland Lumber Co., 54 Or. 387, 392 (102 Pac. 601, 103 Pac. 514); Kopacin v. Crown-Columbia Pulp & Paper Co., 62 Or. 291, 296 (125 Pac. 281); Adams v. Corvallis & E. R. Co., 78 Or. 117, 128 (152 Pac. 504). In 1 Shearman & Redfield, Negligence (6 ed.), §3, negligence is defined thus:
“Negligence, constituting a cause of civil action, is such an omission, by a responsible person, to use that [551]*551degree of care, diligence and skill, winch it was his legal duty to use for the protection of another person from injury as, in a natural and continuous sequence, causes unintended damage to the latter.”
There is some conflict in the , evidence given on behalf of plaintiff and that on behalf of defendant. This, of course, was for the jury to settle. The testimony on the part of plaintiff tended to show, and the jury might reasonably conclude therefrom, that the angle-irons mentioned were transported to the material-yard of defendant on a railroad car and were unloaded by means of a derrick in sling-load lots, of different lengths mingled together, and dumped haphazardly in piles in the material-yard; that for the purpose of being able to get the chains with which the irons were lifted, out from under them, and also for the purpose of supporting the pile, stringers were placed under each sling-load; that these stringers were usually twelve by twelve, but at the time the material in question was unloaded there were none of this size and pieces of different length and thickness were used for the purpose and were defective stringers; that the pile was six feet in height, higher than ordinarily made; that on account of the different sizes and lengths of the angle-irons and the defective and irregular stringers used in piling them, the defendant, in its haste to get the car unloaded had neglected to pile the irons in a reasonably safe or proper manner; that plaintiff in performance of his duty, in getting some of these angle-irons out of the pile for use in shipbuilding, on account of the negligent manner in which the irons were piled, was caught, as in a snare, by the pile of irons tipping over on to him, and injuring him, withóut his fault; that plaintiff was not repiling the irons [552]*552to make the pile safe; and that defendant failed to nse reasonable care to furnish plaintiff with a reasonably safe place to work.
1, 2. Indeed, the trend of the evidence was that the piles of angle-irons, as they were unloaded from the cars, were dangerous to work around. This appears to be one of the reasons for repiling them. The question of negligence does not depend on the mere happening of the accident. It was the legal duty of the defendant to exercise reasonable care to furnish the plaintiff with a reasonably safe place in which to work: Millen v. Pacific Bridge Co., 51 Or. 538 (95 Pac. 196); Woods v. Wikstrom, 67 Or. 581 (135 Pac. 192). There being’ competent evidence to be submitted to the jury, and to support the verdict, the motion for a nonsuit was properly overruled.
3. It is contended by defendant that the work in which the plaintiff was engaged at the time of the accident was for the purpose of making the place safe, and that the rule as to safe place does not apply. This contention is based upon the testimony of the defendant’s foreman. It is not in accord with that on behalf of plaintiff. The jury evidently found that .the plaintiff’s narration of the circumstances was correct, and that the foreman had not remembered all of the details. The plaintiff had a short time before, as he says, been at work repiling another pile, but was called away by the foreman and directed to help get out some angle-irons from the pile in question for use in the construction of the boat.
The facts of the case differ from those in Miller v. Hart-Parr Co., 165 Iowa, 181 (144 N. W. 589), cited and relied upon by defendant. There the evidence showed that the workmen were acting under general [553]*553orders to pile angle-irons separately and bind them with strips of wood; that plaintiff, who had thus been employed for four or five weeks, generally selected the strips which were nsed, and might have nsed larger and stronger ones; and that the condition and safety of the place was continually changing as the work progressed but contained no' hidden danger. It was held insufficient to show the defendant negligent in failing to direct the use of larger and stronger binding strips.
Here the evidence indicated that the plaintiff on the third day of his employment was directed to work with two others in getting out angle-irons from a pile that had been piled or dumped from the car the day before. He had no volition in piling the irons. He had assisted only a short time the day before, about thirty minutes, in gathering stringers to bind the pile. The testimony is uncontradicted that the kind of stringers usually used were not to be had, and the men were obliged to use the best they could get, those which were unequal in length and size and defective. At the time plaintiff commenced work on this pile the foreman directed him to “get in over there and help kick them out.” He was at work under the direct supervision of the foreman, who was close by, and knew nothing about the manner in which the irons had been piled.
The second assignment of error relates to the giving of the following instruction to the jury:
“While ordinarily, in a case of master and servant, such as this case is, the mere fact that the plaintiff sustained an injury is not sufficient in itself to prove the defendant was negligent, still, if the facts and circumstances of' the accident are shown, together with all the surrounding circumstances, and if, as a result of that evidence, the result shows the [554]*554defendant negligent, that might he sufficient to establish the negligence on behalf of the defendant, provided you are satisfied from the evidence of the accident and surrounding circumstances that the accident could not reasonably have occurred in the absence of the failure of the defendant to use ordinary care. ’ ’
Defendant contends that this instruction virtually informs the jury that the doctrine of res ipsa loquitur applies in this case, and that the falling of the pile was sufficient to authorize the jury to return a verdict.
4. We do not think that the charge was understood thus by the jury. Taken alone, the instruction complained of is quite general. In that part of the charge immediately prior to the one quoted, after defining negligence, the jury was instructed that the plaintiff must prove the negligence of the defendant, “and it cannot be inferred from the fact that the accident happened and that the plaintiff was injured,” and thereafter the court charged that the plaintiff must establish by a preponderance of evidence that the injury complained of was caused by the carelessness and negligence of the defendant; and that if they found this was an accident, and one that could not have been foreseen or avoided by the exercise of that degree of care which the law requires, or one of those accidents which might occur and no one be negligent, then the defendant was not liable, and again the court charged: .
“So that, gentlemen of the jury, if you find that the defendant acted in a careless and negligent manner/in that it directed and placed plaintiff to work in and about a pile of angle-irons which the defendant had carelessly and negligently piled in a loose and uneven manner, and in such a way that when one or two of said angle-irons were moved that same was [555]*555apt to fall, and did fall, and as a direct and proximate result thereof plaintiff was injured, as complained of, without negligence on plaintiff’s part, your verdict should be for the plaintiff. Otherwise, your verdict should be for the defendant.”
The instruction criticised, when taken in connection with the other part of the charge, we think plainly, informed the jury that the plaintiff was required to prove, and they must find, before a verdict could be rendered for plaintiff, that defendant was negligent in piling the angle-irons in a loose and insecure manner and in directing the plaintiff to work at the pile without warning him of the condition thereof. The contention of defendant in this respect cannot be sustained.
Finding no reversible error in the record, the judgment of the lower court is affirmed. Affirmed.
Burnett, Benson and Johns, JJ., concur.