Dickerson v. Eastern & Western Lumber Co.

155 P. 175, 79 Or. 281, 1916 Ore. LEXIS 184

• Court: Oregon Supreme Court
• Decided: February 15, 1916
• Status: Published

Opinion

Mr. Justice Burnett

delivered the opinion of the court.

1. The principal contention of the defendant is that the court erred in applying to the issues in the case the initiative act adopted at the general election in 1910, commonly known as the employers’ liability law, embodied in Chapter 3 of the General Laws of Oregon for 1911. As stated, the defendant admits that it was running machinery, and that the plaintiff was at the time employed by it in a capacity connected with its operation. The statute in question was peculiarly designed for ‘ ‘ extending and defining the liabilities of employers in any or all acts of negligence or for injury to their employees.” Its authority is exercised over “all owners * * or persons whatsoever, engaged # * in the erection or operation of any machinery.” It states that:

Such persons “shall see * * that all * * wood # * or other material whatever, shall be carefully selected and inspected and tested so as to detect any defects, and all scaffolding, staging, false work or other temporary structure shall be constructed to bear four times the maximum weight to be sustained by said structure; * * 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 appliances and devices”: Section 1.

Section 3 visits a criminal penalty upon such persons, and states that:

“This shall not affect or lessen the civil liability of such persons as the case may be.”

The latter section plainly continues in force the old rule that it is a nondelegable duty of the employer to furnish a reasonably safe place in which the servant is to work. The requirements of the act are simply expressions in detail of the duty thus enjoined, and are not satisfied with less than continual vigilance according to the standard of the enactment.

The complaint counts on the defendant’s negligence, not only in the original construction, but also in the subsequent maintenance of a defective instrumentality. In various forms the defendant urges that the liability act is not applicable under the pleadings, and that before it can be used as the standard by which the issue is to be determined the plaintiff must have declared upon the very language of the statute and brought himself within its letter. For instance, it criticises the averments of the complaint quoted above, and maintains that the plaintiff should have stated in so many words that the scaffolding was not constructed to bear four times the maximum weight to be sustained by such structure. The plaintiff states, in substance, that in the discharge of his duties he was necessarily required to cross over the staging, and that in doing so one of the boards composing it broke, precipitating him to the floor. It would seem that, if the material was not strong enough to bear the weight of one man, it would assuredly be too weak to sustain four times his weight. Again, the defendant complains that, when plaintiff says the defendant was negligent “in failing to properly test and inspect said staging in order to ascertain any defects that might appear therein,” he states a mere conclusion of law, and that it should be left to the court to say whether the inspection was proper. The averment, however, does not stop with saying that the defendant failed to properly test and inspect the staging. It goes further, and shows the extent to which the examination ought to have been carried, namely, to ascertain any defects that might appear therein.

2 — 4. It is also claimed that the defendant’s whole duty was performed when at the outset it furnished a suitable appliance, and that afterward its liability must depend upon some other rule than that announced in the statute; but we do not so apply the enactment. It is remedial in its character, and in that light should be liberally construed. The general object is for the protection of employees. In such cases the duty of the defendant is continuing, and controls, not only the inauguration of a safe plant and appliance, but also the maintenance of the same thereafter. This conclusion is plainly deducible from the general duty imposed upon the persons within the contemplation of the act to use every device, care and precaution for the protection of its employees. This disposes of the contention of the defendant that the plaintiff was permitted to allege faulty construction and prove defective maintenance. It is in bad form to set out a conclusion of law or to say that this or that statute is the one under which the action is brought. It is enough to declare the facts upon which the plaintiff relies, and the court will for itself determine what legal rule governs the construction of the averments. For instance, in a declaration upon a promissory note it would not be requisite. to state that the action was brought under the negotiable instruments law nor to say that it was an action upon an express contract. Again, where the plaintiff should allege that defendant had beaten and wounded him, to his bodily injury, it would not be essential to inform the court that the grievance is founded on a tort. In this case the plaintiff has stated a series of facts to which the rule of law embodied in the legislation in question is fairly applicable. There was no need for the court to state the source from which he derived his legal conclusion or to say in so many words that the employers’ liability law was applicable ; but no harm was done by being thus explicit.

5. The testimony shows that in the mill in question there were at least two lines of overhead shafting running substantially parallel with each other, too high •from the floor to be reached by the oiler without the aid of some appliance. The evidence on the part of the defendant shows that under each of these main lines of shafting it had provided a permanent staging or “runway,” as some witnesses called it, composed of 2-inch planks securely fastened to the timbers of the mill, upon which the oiler was required to pass and repass in the discharge of his duties. They were so high from the floor that the plaintiff was compelled to climb upon them by aid of a step-ladder or otherwise. It is in evidence that at the point where the plaintiff received his injury there were two boards 1x8 inches in dimensions laid side by side from one of these permanent platforms to the other. A witness who had formerly been a millwright in the employ of the defendant “to look over the machinery and see that everything was going pretty good,” as he phrases it, testified that he pnt np those boards “for the millwright to go and fix the machinery and so that the oiler conld go aronnd there to oil.” The plaintiff stated on oath that during the course of his employment for three years prior to the accident the boards were there, and were regularly used by him for the purpose of going from one line of runway to- the other. The defendant contends that all this was without its knowledge, and that it was his duty to climb down from one side on the ladder and move it over to the other and again ascend. "We remember that it pleads that the ladder was the only appliance which it furnished, and instructed the plaintiff to use in the discharge of his duties. There is testimony to the effect that the ladder was used indiscriminately by all the employees, and that sometimes it was available for use by the plaintiff, and sometimes not. The superintendent testified thus:

“You never gave John [meaning, plaintiff] any instructions with reference to this oiling?

“A. Yery seldom — once or twice.

“Q. Well, did you with reference to how to do his duty?,

“A. No.”

The narrations of the witnesses are silent as to whether any instructions were given to the plaintiff about what to use. There is testimony tending to show that these boards were there in that position when the employment of the plaintiff as an oiler began, and we bhi-nk it is a fair deduction of fact which the jury was authorized to make from the circumstances that they constituted an invitation to the plaintiff to use them in going about to oil the overhead bearings. Indeed, he testifies that there was one shafting that could not be reached except from the staging that broke under him. Another witness states that the boards were Gulls indicating defective material.

6. After quoting the provisions of the act, the court instructed the jury in the following language:

“If the defendant in this case furnished the plaintiff in this case a scaffolding to do his work which met the requirements of this law, as I have just read it to you, then in that respect it performed its duty toward him, and there is no negligence in the case, and your verdict must be for the defendant. If it furnished this place for him, but the plaintiff, without the knowledge of the defendant, selected instead this temporary scaffolding for his own purpose, when this other permanent scaffolding was furnished by the defendant as the one which the plaintiff was to use in performing his duties as an oiler, and as I have just said, this other temporary staging was used without the knowledge of those in charge of the work of the defendant, then the plaintiff cannot recover in this case; but, if this temporary staging was used by the oiler with the knowledge of the defendant company, and it was done habitually to such an extent that the defendant company knew that their oilers were using it habitually and permitted them to use it, then it was the company’s duty to put it in the condition which this law passed for the safety of employees required it to be in — that it should be so constructed as to bear four times the maximum weight to be sustained by it. If the defendant ^company failed to perform this duty which is by the statute enjoined upon it to perform, it was negligent without any other question in the case. This law was passed for the protection of employees and the public, and its requirements must be met, and failure to do what the statute says must be done constitute-negligence in and of itself. ’ ’

This left to the jury the disputed question of fact of whether the defendant had provided a defective scaffolding for the use of the plaintiff, or had not done so, or whether, on the other hand, it had furnished only a ladder which was safe and suitable for the work. It fairly informed the jury that, if the defendant supplied the plaintiff with a safe and suitable instrumentality for the performance of the work, and he refused to do it, but adopted an unsafe method of his own accord without its knowledge, it- was exonerated. On the other hand, it presented to the jury the alternative that, if the defendant furnished a defective scaffolding, or if the same was thus employed so long and constantly that it must be presumed the defendant knew it was being so used and permitted it, then the duty of the defendant to keep it in suitable repair attached to the transaction. The charge fairly met all the conditions of the case in that respect.

7. The quoted excerpt includes most of the instructions requested by the defendant. It asked in addition thereto the following direction to the jury:

“No. 6. It is the duty of an employee, when doing such work as the plaintiff was at the time he was injured,. to exercise reasonable care and caution to avoid danger and injury to himself, and to use reasonable care and caution in looking and observing where he walks or moves, and to exercise reasonable care and caution to avoid dangers and injuries to himself.”

The enactment under consideration does not directly impose any such duty upon the employee. So far as liability is concerned, it rests primarily upon the negligence of the defendant contributing to the accident. Under the statute the heedlessness of the plaintiff is an ingredient only for the purpose of mitigating damages. The true rule was stated by-the court, in substance, that one is not barred from recovering compensation because he has been guilty of carelessness contributing to his own injury, and that in the final calculation the fault of each party is considered, and the damage apportionately adjusted.

8. In brief, the pleadings show the relation of employer and employee in the operation of machinery and the neglect of the defendant both in construction and maintenance of a defective scaffold which it provided for the use of the plaintiff and which broke undér him to his hurt. Issue was joined on the questions of negligence and of the installation and retention of the faulty appliance. There was testimony on each side of the question. The court fairly presented the theory of each party to the jury by appropriate instruction, and the verdict settles the facts.

We find no error in the record.

The judgment is affirmed. Affirmed.

Mr. Chief Justice Moore, Mr. Justice McBride and Mr. Justice Benson concur.