Schroeder v. Brown & McCabe

116 P. 335, 59 Or. 81, 1911 Ore. LEXIS 108

• Court: Oregon Supreme Court
• Decided: June 6, 1911
• Status: Published

Opinion

Mr. Justice McBride

delivered the opinion of the court.

1. The evidence shows that plaintiff was at work on the dock, and that the offshore guy rope broke at a place which must have been at least 30 feet distant from where he was at work. When the boom was swung over the dock, for the purpose of having attached to it the load, which it was plaintiff’s duty to make up and prepare for hoisting aboard the vessel, that portion of the offshore guy rope, which was attached to the boom, would necessarily be within a few feet of plaintiff, but not in a position to attract his attention. It was no part of his duty to inspect this rope, as it was not a thing which he was required to handle or have anything to do with in the course of his work. It was one of the appliances which it was the business and duty of the master to furnish to enable the boom to be properly handled in the course of swinging the lumber from the dock to the hatch, and it was the duty of defendant to furnish one that was reasonably safe for that purpose, and plaintiff, a laborer on the dock, was not obliged to make an inspection of the rigging of the boom to determine its soundness. He had a right to rely on the assumption that the guy rope was reasonably safe and adequate for the purpose for which it was used.

There is no evidence that plaintiff observed or had occasion to observe the defective condition of the rope, and therefore no evidence upon which an instruction as to contributory negligence on his part could be predicated. In this view of the case the instruction of the court as to contributory negligence becomes purely academic; but so far as it went it seems to be the law.

2, 3. Defendant also assigns as error the refusal of the court to give the following instructions:

“I instruct you that if the guy line in question was made single by Anderson, or any of the employees of the defendant, and that by reason of being made single, instead of double, it could not stand the strain and broke, and plaintiff was thereby injured, that your verdict must be for the defendant, as the act of Anderson or any other of defendant’s employees in lengthening the rope was a detail of the work that defendant, as a matter of law, could leave to the servants to carry out.”

“I instruct you that, so far as this case is concerned, Anderson was a fellow servant of plaintiff, and defendant cannot be held responsible for any negligence on the part of Anderson.”

Both of these requested instructions assume as a matter of law that Anderson was a fellow servant with plaintiff; whereas, there is testimony standing to show that he had charge of the work with power to hire and discharge the hands and was a vice principal, and for that reason they were properly refused.

The judgment is affirmed. Affirmed.