Gunnell v. Van Emon Elevator Co.

159 P. 971, 81 Or. 408, 1916 Ore. LEXIS 282

• Court: Oregon Supreme Court
• Decided: September 12, 1916
• Status: Published

Opinion

Mr. Justice Burnett

delivered the opinion of the court.

1-4. One of the contentions of the defendant appealing is that the court erred in instructing the jury that the degree of care due from it to its employee was measured by what is known as the Employers’ Liability Act, while the same instruction imputed to the other defendant only the common-law measure of care, the deduction being that, inasmuch as the plaintiff had charged the defendants jointly, it must follow that they should be treated alike by the court as to the measure of diligence in protecting the plaintiff from harm while engaged in the work in question.

It is admitted in the pleadings between the parties before us that the plaintiff was an employee of. the elevator company at the time of the accident. Its liability must be measured by the relation thus existing between it and the plaintiff. The same general principle would apply to the other defendant. Each of them must be. judged by the duty it owed to the plaintiff. But the record shows that the connection between the plaintiff and each of the defendants was different. In the one case there was the condition of master and servant, and in the other that intimate connection did not exist. The Broadway Realty Company was hound only to take reasonable care and precaution against injuring the plaintiff. As to the appealing defendant, the employer of the plaintiff, the rule is prescribed in the Employers’ Liability Act, the concluding clause of the first section of which is in this language:

“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 appliance and devices.”

There are many authorities cited by the appellant to the effect that where a master sends a servant in his general employment to work upon the premises of a third party, the employer is not responsible for an injury happening on account of the dangerous condition of the place over which the employer has no control, but that the liability, if any, must be visited upon the owner of the realty. All of those cases are instances where no such statute as our employers’ liability law existed. This legislation has superseded that rule,, and has explicitly visited upon a person who has charge of a work involving a risk or danger the duty of taking every precaution against the happening of an injury. There is ample testimony in the case to show that the Van Emon Elevator Company had control of the situation. It is admitted that it had charge of the work of repairs. It knew the surroundings, and it was incumbent on it, when it sent its employee into the elevator shaft, to take precautions for his safety and provide for him a safe place in which to work. If it could not do so, it should have declined the undertaking. There was testimony, however, tending to show that it did assume, control of the elevator, at least-on the south side. This is sufficient to take the case to the jury independent of the authorities cited by the defendant. The negligence imputed to the Yan Emon Elevator Company was of a negative sort, in failing to provide a safe place in which to work, and the like. The violation of duty attributed to the other defendant was of an affirmative nature, in that its careless act of operation of the machine produced the injury. In other words, approaching the scene from a different standpoint, the several shortcomings of each defendant concurred with the result that the plaintiff was hurt. Each defendant was bound by his own duty. Neither can complain of a direction given to the jury more favorable to its codefendant than to itself. The instruction correctly defines the duty of the elevator company, and it must be bound by it, irrespective of a charge more favorable to the other defendant.

5. Complaint is made of the refusal of the court to instruct the jury, at the request of the elevator company, to the effect that if there was a safe way for doing the work and an unsafe way, choice between which-was within the power o'f the plaintiff, and he voluntarily chose the unsafe way, he would be guilty of contributory negligence utterly defeating his recovery. An answer to that is that the employers’ liability law (Section 6), expressly says:

“The contributory negligence of the person injured shall not be a defense, but may be taken into account by the jury in fixing the amount of the damages.”

6. Moreover, the testimony fails to disclose a situation of the hind intimated by the requested instruction. It does not show that there were two ways of doing the work, one dangerous and the other safe. The only testimony on that point is that of the plaintiff himself, to the effect that the position he assumed was the only one from which could be accomplished the particular part of the work in which he was engaged when the accident happened. On both grounds, therefore, the court was justified in refusing the instruction. There is no error in the record, and the judgment is affirmed. Affirmed.

Mr. Chief Justice Moore, Mr. Justice Bean and Mr. Justice Harris concur. Mr. Justice Eakin absent.