McCAMANT, J.
1. A preliminary question is suggested by tbe contention of Marshall-Wells Hardware Company that the state court lost jurisdiction on the filing of its petition and bond on removal to the federal court. It is alleged in the first affirmative answer of this defendant that such petition and bond were filed in the Circuit Court February 16, 1917, and that the Circuit Court refused to make an order removing the cause.
The petition and bond alleged to have been filed are attached to the answer as exhibits. The reply admits:
‘ ‘ That after the time allowed by law for the removal of this caúselo the District Court of the United.States for the District of Oregon, said defendant attempted to remove the same but was unsuccessful.”
The other allegations of the answer are denied. The bill of exceptions fails to show any evidence on this subject. Nothing further is shown in this connection by any part of the record. It does not appear, therefore, that the petition and bond were filed in the Circuit Court. This condition of the record prevents us from sustaining this contention of Marshall-Wells Hardware Company even if it were otherwise well taken.
2. The petition attached to the answer as an exhibit is sworn to under date of February 14,1917, and could not have been filed earlier than that date. It alleges that the petitioning defendant was duly served within Multnomah County, December 14, 1916. When, as in this case, the right of removal is based on diversity of citizenship, the petitioner is required to file his petition “at the time, or any time before the defendant is required by the laws of the state - or the rule of the [310]*310state court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff”: 25 Stat. 435. Under our law the petitioning defendant was required to answer or plead to the complaint by December 24, 1916, and although his time so to plead may have been enlarged by stipulation or court order, his time to petition for removal expired on that day. There is a line of authority to the effect that a plaintiff who stipulates for an extension of time within which to answer will not be heard to contend that the time allowed for the removal of the cause has expired. If this principle can be considered settled, it by no means follows that the Circuit Court lost jurisdiction of this cause by the filing of a petition and bond on removal February 14, 1917. The Circuit Court did not err in retaining jurisdiction of the cause.
3. Frank A. Doney, a witness for plaintiff, testified that the floor at the side of the hatch was slippdry and that its dangerous condition could have been obviated if a cleat had been put around the edge thereof. He was then asked, “Have you ever seen bams where they have this cleat that way?” Over the objection and exception of defendants he testified that he was familiar with a barn at Folsom, Montana, where such a cleat was in use about a floor opening. This evidence was offered to show that it was practicable to use the devices whose absence was contended by plaintiff to constitute negligence. In our opinion it was pertinent to the issue.
4. The witnesses Philip Erickson and William Malloy were permitted to testify over defendants’ objection and exception that after plaintiff’s injury a railing was put around the hatchway. The court stated that this testimony had no tendency to establish negligence, but that it was admitted solely for the purpose of show[311]*311ing that such a railing was practicable. That the testimony when so limited was properly admitted is taught by Love v. Chambers Lumber Co., 64 Or. 129, 134, 135 (129 Pac. 492).
5. Plaintiff contends that the bill of exceptions does not permit us to notice the other assignments of error which are pressed upon our attention. The bill of exceptions recites, the trial of the cause before a jury, the taking of plaintiff’s testimony which is attached as Exhibit “A,” the separate motions for nonsuit which were denied and the taking of defendants’ testimony which is attached as Exhibit “B.” The only portion of the testimony which is segregated is that which illustrates the foregoing rulings on the admissibility of evidence. The bill of exceptions sets out seriatim the instructions of the court, the exceptions reserved thereto and the requested instructions which were not given, defendants being allowed exceptions to the refusal thereof. The exhibits which are sent up with the transcript are not physically attached to the bill of exceptions. Plaintiff contends in reliance on Keady v. United Railways Co., 57 Or. 325, 333, 334 (100 Pac. 658, 108 Pac. 197), that we cannot consider the bill of exceptions even for the purpose of reviewing the rulings on defendants’ motions for a nonsuit and for a directed verdict.
In the case cited the exhibits consisted of considerable documentary evidence and the nature of the controversy was such that these documents might well prove decisive. The documents were neither attached to the bill of exceptions nor identified in any way except by a .certificate of the county clerk. The certificate of the trial judge was to the effect that the bound volume of testimony together with the exhibits attached constituted all the evidence. There being no [312]*312exhibits attached, it appeared affirmatively that a part of the testimony was missing. The court therefore applied the presumption that there was no error and refused to consider the questions based on the bill of exceptions. One of these questions was the alleged error in denying the motion for a nonsuit.
In the case at bar the certificate of the trial judge recites that Exhibits “A” and “B” “contain a full, true, complete and correct transcript of all the evidence.” There is no mention of exhibits in the certificate. The exhibits referred to in the transcript of the evidence are few in number and unimportant in their bearing on the question of liability. Two of them are radiographs of plaintiff’s spine; their evidentiary value relates wholly to the quantum of damages, a matter with which we are not concerned on this appeal. Another exhibit is a certified copy of an order of the federal court and no question is made but that its legal effect was correctly stated to the jury. Other exhibits are plats of the first and second floors of the bam where the accident occurred; they are illustrative of the testimony, but not otherwise material. The only remaining exhibit is a notice which was hanging in the bam and which advised teamsters what to do if they ran over anyone. The purport of all these exhibits is shown by the transcript of testimony which is duly identified. We are not disposed to extend the doctrine of Keady v. United Railways Company as we would have to do if we were to sustain this contention of plaintiff. It is our duty on this record to review the rulings of the Circuit Court in denying the separate motions for nonsuit and directed verdict interposed by defendants. We will first consider the motion interposed by the defendant corporation.
[313]*3136. It appears by the testimony that when this defendant took possession of the barn in the antnmn of 1910 it rigged np a hay carrier for the purpose of putting-hay and other things in the second story of the barn. The hay carrier proved unsatisfactory and after the winter of 1911-1912 it was discarded. Thereafter hoisting was done by block and tackle substantially as at the time of the accident. The heavier articles were hoisted from outside the bam directly into the second story, but ten or twelve times a year the hatch through which plaintiff fell was used for hoisting purposes by employees of the defendant corporation. Sometimes they secured their power from an auto truck and sometimes they used a horse. They always used the pulley hung over the hatch and the other pulley anchored on the first floor. It is admitted that the defendant corporation was a lessee of the bam and there is ample evidence that it exercised control there-over. Prior to the date of plaintiff’s injury the defendant corporation enlarged the hatchway. The jury was entitled to infer from this circumstance that this lessee had such control over the property as enabled it to inclose the hatchway and otherwise protect it.
7. We must hold that the block and tackle used for hoisting through the hatch constituted machinery. In Dunn v. Orchard Land Co., 68 Or. 97, 102 (136 Pac. 872), Mr. Justice Burnett adopts from the Encyclopedic Dictionary the following definition of machinery:
“A contrivance by means of which a moving power is made to act upon any body and communicate motion to it.”
In Corning v. Burden, 15 How. (U. S.) 252, 267 (14 L. Ed. 683), Mr. Justice Grier says:
“The term ‘machine’ includes every mechanical device or combination of mechanical powers and de[314]*314vices to perforin some function and produce a certain effect or result.”
Other judicial definitions are collated in 5 Words and Phrases, 4267, and 3 Words and Phrases, Second Series, 204. Under all of the definitions the device and arrangement used for hoisting into the second story of the barn are machinery.
8, 9. The Employers ’ Liability Law of 1910 is applicable to all “persons whatsoever, engaged in the * * operation of any machinery”: Laws 1911, p. 16. While the defendant corporation is primarily a merchant and while the structure in question is a barn, in so far as the defendant operates machinery therein it comes within the purview of the act above referred to and is chargeable with the duties therein defined. One of the duties prescribed by the first section of this act is:
“All shafts, wells, floor openings and similar places of danger shall be inclosed.”
It is true that the defendant corporation engaged in the operation of machinery at the hatch only ten or twelve times a year. It is also true that ordinarily the hatch was closed with trap-doors. These circumstances do not relieve this defendant from the duty imposed by the statute. The applicability of the statute is not dependent upon the continuity of the operation of the machinery. The testimony shows that the hatch was opened frequently for the purpose of throwing down hay and packing material. The hatch was unquestionably a floor opening and the statute required it to be inclosed. The evidence showed that the track to which the pulley was attached was ten feet above the floor of the second story of the bam. A guard-rail four or five feet in height could therefore have been constructed about the hatch without destroy[315]*315ing its usefulness for hoisting purposes. The evidence justified the jury in finding that such a rail was practicable and that if it had been installed plaintiff would not have been injured.
10. It is contended that plaintiff himself should have constructed the guard-rail. There is evidence that he could have secured from the defendant corporation the materials required for such construction, but there is no evidence that it was his duty so to do. Under the statute this duty devolved on Marshall-Wells Hardware Company. This duty was absolute and nondelegable. It would still have been obligatory on the corporation even if plaintiff had been ordered to construct the guard-rail and had agreed to do so: Bowersock v. Smith, 243 U. S. 29 (61 L. Ed. 572, 37 Sup. Ct. 371). As illustrative of the construction given statutes of this class see Steel and Masonry Contracting Co. v. Reilly, 210 Fed. 437, 439 (127 C. C. A. 169); Ford Motor Co. v. Donaldson, 218 Fed. 350, 351, 352 (134 C. C. A. 158); Continental Public Works Co. v. Stein, 232 Fed. 559, 563 (146 C. C. A. 517); Feldman v. Robert E. Mackay Co., 174 N. Y. App. Div. 848 (161 N. Y. Supp. 564).
11. For the determination of the question now under consideration it is not decisive that plaintiff was working for himself at the time of his injury. He was not a trespasser, but was where he had a right to be. He was certainly authorized to use the wood and in order that he might use it he had to hoist it. He was justified in using the facilities which were at hand for such purpose. While so engaged in a lawful occupation he was injured and there was evidence that the injury was chargeable in part to the violation by the defendant Marshall-Wells Hardware Company of a plain duty imposed upon it by statute. The Circuit Court [316]*316did not err in denying the motions of this defendant for a nonsuit and a directed verdict.
12. A different question was raised by the motions of like purport presented on behalf of the defendant Camp. His liability, if it exists, must be predicated on Section 3 of the Employers’ Liability Law, Laws 1911, page 17. This section provides:
“It shall be the duty of owners, contractors, subcontractors, foremen, architects or other persons having charge of the particular work, to see that the requirements of this act are complied with, and for any failure in this respect the person or persons delinquent shall, upon conviction of violating any of the provisions of this act, be fined not less than ten dollars, nor more than one thousand dollars, or imprisoned not less than ten days, nor more than one year, or both, in the discretion of the court, and this shall not affect or lessen the civil liability of such persons as the case may be.”
It will be noted that there is an error in this section as printed in the General Laws of Oregon for 1911. The enrolled act on file with the Secretary of State reads as above.
The defendant Camp was not in charge of the work which plaintiff was doing at the time of his injury. The wood which was being hoisted was part of a large quantity on the ground floor of the bam and which was in the way. Plaintiff testifies that Camp said to him about a week before the accident: “Well, it should be taken out of here, it is in the road. ’ ’ This was not an order to plaintiff to take the wood upstairs and no witness testifies to such an order. We find no evidence that in taking the wood upstairs plaintiff was working for anyone other than himself. It is trae that the teamsters had a stove on the ground floor of the barn and that they occasionally went upstairs for wood [317]*317when the supply downstairs was exhausted. It is clear nevertheless that the wood was being hoisted for plaintiff’s use. It was not being taken upstairs that it might later be brought downstairs. There was evidence from which the jury was entitled to infer that the defendant corporation had agreed to supply plaintiff with some fire-wood, but there was no evidence that said defendant was obligated to deliver the wood on the second floor of the bam.
13. The defendant Camp was under no obligation to test the rope which broke. The rope was one selected by plaintiff himself from a quantity of ropes belonging to the defendant corporation. The work in the course of which plaintiff was injured was not the work of the defendants and those provisions of the Employers’ Liability Act defining the manner in which certain work shall be done were inapplicable to this case.
In Hoag v. Washington-Oregon Corporation, 75 Or. 588, 604 (144 Pac. 574, 147 Pac. 756), liability was predicated on misfeasance rather than nonfeasance and the individual defendants held liable were in actual charge of the work which caused the injury. In Lawton v. Morgan, 66 Or. 292 (131 Pac. 314, 134 Pac. 1037), and Tamm v. Sauset, 67 Or. 292, 297 (135 Pac. 868), the responsibility imposed by the Employers’ Liability Act is limited to the classes of persons named therein. We think the defendant Camp is not one of the persons so named and that- he cannot be held liable under this statute. The record also fails to charge him with a common-law liability. If anyone was liable because of the slippery condition of the floor by the side of the hatch, it was the corporation and not its superintendent.
The motion for a nonsuit presented by this defendant should have been allowed.
[318]*31814, 15. The remaining assignments of error are based on the instructions given by the Circuit Court and the requests to instruct which were refused. Plaintiff invokes the doctrine of Eaton v. Oregon Ry. & N. Co., 22 Or. 497, 503 (30 Pac. 311); Ready v. United Railways Co., 57 Or. 325, 332 (100 Pac. 658, 108 Pac. 197); National Council v. McGinn, 70 Or. 457, 463 (138 Pac. 493); Oliver v. Grande Ronde Grain Co., 72 Or. 46, 49, 50 (142 Pac. 541); Smith v. Kinney, 72 Or. 514, 517 (143 Pac. 901, 1126); Harrison v. Pacific Ry. & Nav. Co., 72 Or. 553, 557, 558 (144 Pac. 91); Cathcart v. Oregon-Wash. R. & N. Co., 86 Or. 250, 253, 254 (168 Pac. 308). In reliance on these authorities it is argued that none of the questions raised by the exceptions to instructions given and refused can be considered.
When the first two of the above cases were decided, our statute defining the form of bills of exceptions was as follows:
“No particular form of exception shall be required. The objection shall be stated with so much of the evidence or other matter as is necessary to explain it, but no more”: Section 171, L. O. L.
In 1913 this statute was amended so as to read:
“No particular form of exceptions shall be required. 'The objection shall be stated, with as much evidence, or other matter, as is necessary to explain it, but no more; provided, however, that the bill of exceptions may consist of a transcript of the whole testimony and all of the proceedings had at the trial, including the exhibits offered and received or rejected, the instructions of the court to the jury, and any other matter material to the decision of the appeal”: Laws 1913, p. 651.
The last five of the cases cited by plaintiff were decided subsequent to the amendment, but they do not discuss it. All of the cases cited by plaintiff announce [319]*319the rule that when the hill of exceptions consists merely of a transcript of the proceedings had at the trial, it will he considered only for the purpose of reviewing the rulings of the trial court on motions for nonsuit and directed verdict. It was held in National Council v. McGinn, 70 Or. 457, 463 (138 Pac. 493), that the form of the hill of exceptions was not involved in the mandamus proceeding there litigated and what was there said on the subject was merely advisory of the views of the learned author of the opinion. Notwithstanding what was said as to the form of the bill of exceptions in Oliver v. Grande Ronde Grain Co., 72 Or. 46 (142 Pac. 541), the court reviewed the action of the lower court in instructing the jury and considered one instruction in the light of the evidence. In Smith v. Kinney, 72 Or. 514 (143 Pac. 901, 1126), it was held that the trial court erred in directing a verdict and what was said as to the form of the hill of exceptions was not necessary to the conclusion reached. In Harrison v. Pacific Ry. & Nov. Co., 72 Or. 553, 558, 559 (144 Pac. 91), notwithstanding the criticisms passed on the bill of exceptions the court decided the legal questions raised by the appeal in so far as they involved the correctness of the instructions. In Cathcart v. Oregon-Wash. R. & N. Co., 86 Or. 250 (168 Pac. 308), defendants’ motion for a nonsuit was sustained and what was there said as to the form of the hill of exceptions was not necessary to the conclusion reached.
In Hoag v. Washington-Oregon Corporation, 75 Or. 588, 602 (144 Pac. 574, 147 Pac. 756), notwithstanding the criticism passed on the form of the hill of exceptions the court reviewed the instructions in the light of the evidence. It was held in that case that the litigation was controlled by the Employers ’ Liability Law of 1910, a conclusion which could not have been reached [320]*320without consideration of the evidence. The bill of exceptions in that case is not to be distinguished from the bill of exceptions in this case.
Notwithstanding some sweeping language found in the opinions cited by plaintiff, this court has repeatedly passed on the accuracy of instructions when the latter have been presented by bills of exceptions in substantially the form of the bill in this case.
A re-examination of the statute as amended in 1913 convinces us that this appellant is entitled to a decision of the questions presented on its exceptions to the instructions given and refused by the trial court. In the construction of a statute the paramount duty of the court is to give effect to the legislative intent: State v. Simon, 20 Or. 365, 370 (26 Pac. 170); Duncan v. Dryer, 71 Or. 548, 557 (143 Pac. 644); Endlich on the Interpretation of Statutes, § 295. It is not to be presumed that the legislature did a vain thing when it amended Section 171, L. O. L. An interpretation of the amended statute which leaves the law after the amendment in the same condition as before is presumptively unsound. Yet this is the effect of a construction of the statute which denies the force and effect of a bill of exceptions to a transcript prepared in accordance with its directions.
In 1910 Article VII of the' Constitution was amended so as to provide among other things that “upon appeal of any case to the Supreme Court, either party may have attached to the bill of exceptions the whole testimony, the instructions of the court to the jury, and any other matter material to the decision of the appeal”: Laws 1911, p. 7. After the adoption' of - this amendment litigants in many cases took advantage of it and in 1913 the legislature amended the statute defining the form of a bill of exceptions. The amendment re[321]*321enacted the old statute and added the proviso. Effect should he given to each portion of the amended act; none of it should be rejected as surplusage: Henry v. Yamhill County, 37 Or. 562, 564 (62 Pac. 375).
The old statute re-enacted the general rule applicable to the form of a bill of exceptions; the proviso added by the amendment made an exception to the general rule. It provided ‘ ‘ that the bill of exceptions may consist of a transcript of the whole testimony and all of the proceedings at the trial, including the exhibits offered and received or rejected,.the instructions of the court to the jury, and any other matter material to the decision of the appeal.” The use by the legislature of the language of the constitutional amendment is significant. Under the Constitution as amended the parties were entitled to attach to the bill of exceptions a transcript of the proceedings had at the trial. The legislature provides that the bill of exceptions may consist of this transcript.
In Endlich on the Interpretation of Statutes, Section 216, it is said:
“Where there are, in an act, specific provisions .relating to a particular subject, they must govern, in respect of that subject, as against general provisions in other parts of the statute, although the latter, standing alone, would be broad enough to include the subject to which the more particular provisions relate.”
It is contrary to the canons of construction to interpret the old statute re-enacted in such manner as to eliminate the effect of the proviso. A fair and natural interpretation of the language used in the act of 1913 permits the trial court at its option to settle the bill of exceptions in the form required by Eaton v. Oregon Ry. & N. Co., 22 Or. 497, 503 (30 Pac. 311), and Keady v. [322]*322United Railways Co., 57 Or. 325, 332, 333 (100 Pac. 658, 108 Pac. 197), or to certify a bill of exceptions in the form of a transcript of tbe proceedings at the trial. To give an effect to the bill settled in one form which is denied to it if settled in the other form is to legislate judicially. In Redsecker v. Wade, 69 Or. 153, 156, 157 (134 Pac. 5, 138 Pac. 485, Ann. Cas. 1916A, 269), it is said:
“The object of the law and the purpose of the bill of exceptions is to provide for this court a succinct and intelligible statement of the errors about which complaint is made on the appeal. In some cases this can be accomplished by a very brief statement. In others it may be necessary to send to this court everything mentioned in the proviso.”
The effort of counsel for appellant should be to prepare and present a bill of exceptions which will raise the questions relied on with a minimum of verbiage, but we cannot refuse to consider any bill which conforms to the statutory requirements. "We have examined the evidence for the purpose of reviewing the rulings of the trial court on the motions for a nonsuit and a directed verdict. It is easier to pass upon the instructions in the light of this evidence than it is to forget the evidence and pass upon the charge of the court solely in its relation to the pleadings, as was done in Portland Public Market v. Woodworth, 67 Or. 327, 331 (135 Pac. 529). A refusal to review these instructions would be to, affirm a large judgment when the record clearly shows that the defendant which must pay the judgment has not had a fair trial. On an examination of this bill of exceptions it is apparent that the instructions on which the verdict was based are contradictory and unsound, and that the questions determined by the verdict are not the real questions presented by the record. [323]*323This bill of exceptions conforms to the proviso in the act of 1913 and it is our duty to pass on the questions which it raises. All bills of exceptions which come before the court in the future in either of the forms prescribed by that act will be regarded as sufficient.
16. The court gave the following instruction:
“The next question which you should determine, aside from the question of negligence, is this: Was plaintiff at the time of his alleged injury working for himself or was he working for the company? If you believe that he was working for himself and was not carrying on the business of the company or promoting its interests, then you must necessarily find for the defendants.
“An employee, in obeying or carrying out the orders of his superior, or one whose orders he is bound to obey, is within the scope of his employment in so doing, and is performing his duties to his employer in carrying out such orders. Now if you find from a preponderance of the evidence in the case that the defendant' Camp ordered or directed or told plaintiff to move the wood from where it was placed, that it was in the way; and that plaintiff in obedience to said order or command did attempt to move said wood, then in so doing he was performing duties to his employer, and such work was within the scope of his employment. However, if at the time of the alleged injuries the plaintiff was taking the wood in question up the hoist, way for his own use and benefit, and was not acting under the orders of the defendants, then the court says to you as a matter of law, that he cannot recover. ’ ’
This instruction is without support in the evidence and is for that reason erroneous: Bailey v. Davis, 19 Or. 217, 222 (23 Pac. 881); Bowen v. Clarice, 22 Or. 566, 568 (30 Pac. 430, 29 Am. St. Rep. 625). The direction of Camp to take the wood out of the way was not an order to hoist it upstairs, nor was there any evi[324]*324denee that plaintiff was performing the work of Marshall-Wells Hardware Company when he was engaged in such hoisting. Plaintiff testified that the defendant corporation had agreed to furnish him free wood. Under the testimony of both parties he was entitled to take wood from the pile on the ground floor of the barn. When he segregated the wood he desired and placed it in boxes for hoisting, it became his wood and in hoisting it he was working for himself.
For the same reason the court erred in giving the following instruction:
“If you believe from the evidence that the defendant, Mar shall-Wells Hardware Company had agreed to furnish the plaintiff wood, either as a part of his compensation for working for it or otherwise, you must then determine from the evidence whether or not such agreement so to furnish such wood required said defendant to deliver such wood upstairs to the plaintiff’s living apartments or whether or not such agreement would be fully complied with by the delivery of such wood downstairs in the building in which the plaintiff’s living apartments were located. And if you believe from the evidence that the defendant, Marshall-Wells Hardware Company, did agree to furnish the plaintiff wood for use in the apartments where he lived and if the delivery of such wood on the lower floor of the building in which the plaintiff’s living apartments were located was a full compliance with such agreement, and if yon further believe that the plaintiff received the injury for which this action is brought while engaged in removing such wood from the lower floor of such building to his living apartments above and was not acting pursuant to the orders of the defendants, you must find for the defendants.”
. There is no evidence that plaintiff’s employer agreed to deliver wood to the second story of the barn for his use.
17. The court also’ gave the following instruction:
[325]*325“The Employers’ Liability Act provides among other things that all owners, corporations, or persons whatsoever engaged in the operation of any machinery shall see that all rope used therein is carefully selected and inspected and tested so as to detect any defects therein, and that all shafts, wells, floor openings and similar places of danger shall be inclosed, and generally that all owners, contractors, or subcontractors and other persons having charge of any or responsible for any work involving a risk or danger to the employees or to the public, shall use every device, care and precaution which it is practical 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 or devices.
“This Employers’ Liability Act further provides that the manager, superintendent, foreman or other person in charge or control of the work or a portion or any part thereof shall be held to be the agent of the employer in all suits for damages for death or for injury suffered by an employee.
“I instruct you as a matter of law that these ropes and these pulleys and this apparatus that the plaintiff and his fellow-employees were using at the time plaintiff claims he was injured is and was machinery and such machinery as referred to in said Employers’ Liability Act, and that this cause of action is governed by the provisions of said act. ’ ’
In so far as the above instruction directed the attention of the jury to the statutory duty of Marshall-Wells Hardware Company to inclose the floor opening through which plaintiff fell, the instruction was pertinent to the pleadings and the testimony. But the work which plaintiff was doing was his own work; in the performance of that work he was not an employee of the Marshall-Wells Hardware Company. The Employers’ Liability Act was therefore inapplicable to the [326]*326manner in which the work was done. The instruction misled the jury as to the duty devolving on the corporate defendant. The rope referred to in the instruction was one which plaintiff himself selected and threw to his son to he used by the latter. There is no evidence that his employer even knew of the work intended to be done. The corporate defendant was under no obligation to test this rope with a view to its sufficiency for hoisting wood to be used by plaintiff for his own purposes. The court erred in refusing the following instruction :
“I instruct you that neither of the defendants was required to test or inspect the rope which was used by the plaintiff as an anchor rope at the time of the accident. ’ ’
18,19. The court also erred in giving the following instruction:
“The court further instructs you that the Employers’ Liability Act of this state further provides that 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 practical 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 the suitable material or safety appliance and device.
“It is for you to determine from a preponderance of the evidence in this case, and from all the facts and circumstances, whether or not the work in which plaintiff was engaged at the time of his injury, if you find that he was injured, involved a risk or danger to himself, and if you determine from a preponderance of the evidence that said work did involve a risk or danger to plaintiff, then I charge you as a matter of law that it [327]*327was the duty of the defendants to have used every care and precaution, and every device which it was practicable to use for the protection of the plaintiff in said work, limited only by the necessity for preserving the efficiency of said hoistway, and the apparatus and appliance and machinery used in said work, and without regard to the additional cost of suitable (material) or ■safety appliance and device. Hence, if you find from a preponderance of the evidence that said work did involve a risk or danger to plaintiff, and you further find from a preponderance of the evidence that the floor adjacent to said floor opening- was slippery and that plaintiff in the performance of his work was obliged to ■stand upon said slippery floor, next to or close to said floor opening, and that by reason thereof his work involved a risk or danger to his life and limb,-then I instruct you that it was the duty of the defendants to have prevented that risk or danger to plaintiff in his work by using every care and precaution and by using or installing every device which it was practicable for it to use or install, limited only by the necessity for preserving the efficiency of said hoistway and the apparatus used therein. ’ ’
A common-law liability might be predicated against the corporate defendant on the alleged unsafe condition of the floor adjacent to the hatchway, but it was not liable to the high degree of diligence exacted by the instruction, for the reason that the work in hand was not its work.
The last two instructions quoted are in contradiction of the following instruction given by the court:
“If the work in which plaintiff was engaged at the time of the injury for which he brings this action was not being done for the defendants, or either of them, then you must find for the defendants.”
It is error to give contradictory instructions: Morrison v. McAtee, 23 Or. 530, 534 (32 Pac. 400); Neis v. [328]*328Whitaker, 47 Or. 517, 524 (84 Pac. 699); Wike v. Oregon-Washington R. & N. Co., 83 Or. 678, 685 (163 Pac. 825).
20. The court instructed the jury on the subject of contributory negligence and it is contended that this instruction was irrelevant to the issues. It is alleged in the first further and separate answer of the defendant corporation that “whatever accident happened to the plaintiff and whatever injury he suffered was the result of his own acts and of nothing else and if there was any element of negligence involved in the accident or injury, it was not the negligence of this defendant. ’ ’ This allegation was sufficient to justify the instruction complained of: Tabor v. Coin Machine Mfg. Co., 85 Or. 194, 198 (166 Pac. 529).
The instructions were faulty in other respects than those above noted, but the error is not likely to be repeated on a retrial and we will not therefore prolong this opinion by noticing the remainder of the charge.
The judgment is reversed and the cause is remanded, with directions to enter a judgment of nonsuit as to the defendant Camp, and for further proceedings not inconsistent herewith as to the defendant Marshall-Wells Hardware Company.
Reversed With Directions.
McBride, C. J., and Moore, J., concur.
Mr. Justice Bean dissents except as to that part of the opinion relating to the bill of exceptions.