Eckhardt v. Jones' Market

209 P. 470, 105 Or. 204, 1922 Ore. LEXIS 63

• Court: Oregon Supreme Court
• Decided: October 3, 1922
• Status: Published

Opinion

MoBRIDE, J.

It becomes important at the outset to inquire as to the extent to which an employer may be held liable under the provisions of the Workmen’s Compensation Act in those cases where he has expressly notified the Industrial Accident Commission that he declines to avail himself of its provisions. In the case at bar the defendant had expressly notified the commission of its intention not to be so bound and therefore, by the provisions of Section 6620, Or. L., it is deprived of the defenses of assumption of risk and contributory negligence, except so far as the jury may take contributory negligence into consideration as reducing the quantum of damages.

1. The principal question, therefore, is whether or not the defendant belongs to that class of employers who were required to accept or reject the provisions of the act, that is to say: Is the business carried on by defendant of such a character as to come within the term “hazardous” as defined by the statute? Subdivision a of Section 6617 specifies as hazardous occupations, “factories, mills and workshops where power driven machinery is used.” Li defining a factory, etc., the following language is used:

“ ‘Factories’ mean undertakings in which the business of working at commodities is carried on with power-driven machinery, either in manufacture, repair or change, and shall include the premises, yard and plant of the concern.

“ ‘Workshop’ means any plant, yard, premises, room or place wherein power driven machinery is employed and manual labor is exercised by way of trade for gain or otherwise,” etc.: Section 6619, Or. L.

It is further provided that employers and employees who are engaged in an occupation partly hazardous and partly nonhazardous shall come within the terms of the act, as if such occupation were wholly hazardous: Section 6614, Or. L.

It is shown by the evidence that part of the business carried on by the defendant was the manufacture of sausage through and by the use of “power-driven machinery,” and by the terms of this act, this part of the business is a hazardous occupation. It may not usually be so in fact, but it is always so in law, so far as the act we are now considering is concerned. Part of plaintiff’s duties, in fact the greater part was performed about and upon this machinery and in the room where it was operated, the work in which he was engaged when the accident occurred being only occasional, perhaps four or five hours during the week. Upon the undisputed testimony we must hold that for the purposes of this case the defendant was as a matter of law engaged in a hazardous occupation, and that having rejected the provisions of the Workmen’s Compensation Act, it is precluded from urging the defenses of contributory negligence and assumption of risk; and the fact that plaintiff was not actually engaged in the operation of power-driven machinery when the injury occurred will not of itself relieve the defendant from liability, provided the other elements of recovery are present: Morin v. Nashua Mfg. Co., 78 N. H. 567 (103 Atl. 312); Casey v. Frank Jones Brewing Co., 79 N. H. 42 (104 Atl. 454).

Laying the defenses of contributory negligence and assumption of risk out of the case, we are satisfied that there was sufficient evidence of negligence on the part of defendant in the matter of furnishing plaintiff with a reasonably safe place to work, to take the case to the jury.

2. We have no right to pass upon the comparative weight of the testimony introduced by the respective parties. That was a matter for the jury, and a recital in detail of the testimony introduced by the plaintiff would be unprofitable., Suffice it to say that it followed closely and substantially sustained the allegations of the complaint and indicates that through the negligence of defendant in permitting the passageway to become blocked with barrels, the plaintiff and his assistant were compelled to use the method outlined in the complaint in order to accomplish their work, and that there was under the circumstances no other way in which they could accomplish it with the celerity required of them by their employer. Had the passageway been kept free from congestion as it should have been, plaintiff’s assistant would not have been compelled to pitch and plaintiff to catch the heavy hams thrown from a distance of ten feet, and plaintiff would not have been injured.

3. Error is predicated upon the court’s having permitted plaintiff to testify over defendant’s objection that the light in the room was not very good and that the floor was greasy and slippery. It is urged that this testimony was incompetent because the absence of light and the slippery condition of the floor were not alleged in the complaint as elements of negligence. It is difficult to see how this testimony could have affected the case one way or the other, as there was no claim that either of those conditions influenced plaintiff’s conduct in any way, and it must have been patent that neither of such conditions caused plaintiff’s hand to be lacerated when he caught the hams thrown to him. It was a description of conditions surrounding the accident, which if it had any value at all only tended to show that under all the circumstances plaintiff was in the exercise of due care or at least was not negligent.. In this respect the case is similar to Miller v. City of St. Paul, 38 Minn. 134 (36 N. W. 271), which see.

Error is also predicated upon the giving by the court of instructions excluding the defenses of contributory negligence and assumption of risk, but that objection is based upon a view of the law which we have already held to be erroneous.

The judgment is affirmed. Affirmed.

Burnett, C. J., and Harris and Rand, JJ., concur.