When we have once determined correctly whether Walters was acting within the scope of his employment when he addressed himself to the task of shoving the empty car beyond the road crossing, the assignments of error will be substantially solved. It is essential to the plaintiff's case that it must appear that Walters was acting within the scope of his employment, because the terms of the Employers' Liability Act accept into their embrace only employees whose duties require their presence at the scene of the accident at the time of the casualty. The plaintiffs allege that upon the occasion of the fatal moment Walters was in the employ of the mill company, and that he was discharging duties within the scope of his employment. Let us see what the testimony discloses in regard to the nature of Walters' duties. Norgard, as a witness, testified as follows:
"Q. What was the nature of his work? A. He was sweeping, I think, and then feeding in flour."
However, this was not his only duty, for apparently the arrangement was such that one employee had a *Page 495 right to call upon another for assistance. Thus Norgard testified:
"Q. Had you any supervision over Walters' work? A. No. Only when I was told any time I needed any help or assistance around the mill, to either ask him or Mr. Howe to help me, or some of the other men; whenever we needed help there we were asked to help each other.
"Q. So, for the purpose, you had a right to call on him for any service? A. Yes, sir. * *
"Q. He didn't work under you? A. Well, whenever we needed any assistance at that mill, we have always been told to ask somebody to give us a hand.
"Q. If you needed any help for the work you were doing in the mill, you could ask anyone that wasn't busy? A. They was supposed to help; that's the way it was, all around.
"Q. Sort of a mutual proposition around the mill * * one helped the other? A. That's the orders we got from the foreman all the time * * if we needed any help to ask for it and get it."
The witness testified that his (Norgard's) duties were "cleaning and washing wheat and blending," and "elevating it over into the mill." The foregoing testimony given by Norgard was not contradicted. While in reply to a leading question he testified that his duties were performed inside of the mill, nevertheless other portions of the evidence, which we shall refer to, are sufficient to support a conclusion that removing cars from the crossing was within his duties. The same witness described the events that immediately preceded the accident as follows:
"Q. Will you tell the jury what took place immediately before he was hurt? A. Well, we was over at the mill at the time.
"Q. Over at the Terminal Mill? A. Over at the mill before we went over to shove the cars. *Page 496
"Q. What were you doing there? A. I came out of the mill, and Walters was standing outside there, and we was standing there talking a few minutes, and a truck driver come past the end of the car coming over there, and I says, `There's a load of sacks over there, and I guess he is coming over to see if we can help him'; so the truck driver come over and he says: `We got some sacks for the mill,' and I says, `Well, we'll go over and help him, Charley,' * * we called him `Charley,' * * and I says, `You get a pinch-bar, and we'll go over and help him.'"
As appears in the statement of fact preceding this decision Walters obtained the pinch-bar from the warehouse; he, Norgard, and the two others then placed the car in motion; but at about the same time, a car which the defendant was moving collided with Walters and caused his death. Defendant now contends that when Walters and Norgard undertook to shove their car out of the way they stepped outside of the course of their employment and either undertook a task for the transfer company, which was bringing the sacks to the mill, or were engaged in a frolic of their own.
Let us now ascertain from the evidence whether Walters as an employee of the milling company was engaged in performing a duty in its behalf and within the scope of his employment when he placed the empty car in motion. We shall briefly review the evidence, but before doing so, let us remind ourselves of a principle of law applicable to the inquiry. We shall state this principle by using the words found in 4 Labatt's Master Servant (2 ed.), Section 1566:
"The scope of a servant's duties in relation to the rule illustrated by the cases cited in the last section is defined by what he was employed to perform, *Page 497 and by what, with the knowledge and approval of his employer, he actually did perform, rather than by the mere verbal designation of his position. The question whether the injured person was acting in the course of his employment is for the jury, where the evidence is conflicting, or where a difference of opinion may reasonably be entertained with regard to the proper inference to be drawn from the testimony. Otherwise that question is decided as one of law by the court.
"Any evidence which has a bearing upon the actual scope of the servant's duties is admissible. One of the most important circumstances to be considered is whether the servant had ever, upon any other occasion, engaged in work similar to that which he was doing when the injury was received. If the conditions under which such work had previously been performed were such as to warrant the inference that the enlargement of his regular functions had been acquiesced in to the extent shown, a court will, in most instances, decline to say, as a matter of law, that the servant was injured outside the proper scope of his employment. The acquiescence upon which the right of action in this point of view depends will of course be inferred only where it appears that the fact of the servant's having discharged the additional duties was known to the master or his agent ad hancvicem."
In 39 C.J., Master and Servant, Section 402, the rule is stated thus:
"* * But where the servant acts in obedience to an express order of the master, or performs work not strictly within the line of his duty at the command or request of another servant having either express or implied authority to make such command or request, he is within the general scope of his employment. * *" *Page 498
In Section 403 we find:
"But the scope of a servant's duties is to be defined by what he was employed to perform, and by what, with knowledge and approval of his master, he actually did perform, rather than by the mere verbal designation of his position. Where it is shown that the servants were in the habit of exchanging work or assisting each other in their duties, a servant so engaged is held to be still within the scope of his employment, and an employee may show that conditions under which his work had been previously performed by him were such as to warrant the inference that the enlargement of the scope of his employment had been acquiesced in so as to include the work being done at the time of an injury, or his presence at the place where the injury occurred."
The application of this rule in a few cases by other courts may be helpful. Thus in Mullin v. Northern Mill Co., 53 Minn. 29 (55 N.W. 1115), the plaintiff was an employee of the defendant as a blacksmith; he was injured while putting a chain in place on a sprocket wheel. One of the questions was whether his injury occurred while he was acting within the scope of his employment. While passing upon this issue, the court observed:
"We think there is evidence in the case reasonably tending to show that the work was not beyond the scope of his employment, or, in any event, that he was acting at the time under the direction of defendant's authorized agent. At the time of the accident neither the millwright nor foreman was in the mill. The mill was running and lighted for the night, and there were forty workmen. And the evidence tends to prove that in a case like this, when a machine got out of repair, it was the duty of the man in charge to see that it was put in repair. The foreman, who was not present at that time, testified: `Whenever anything broke of that kind the man that ran the machine or the millwright fixed it. If the *Page 499 millwright was not there, when I was not there, the machine would lie still until I came, if he could not do it himself, or get some assistance to do it.' Plaintiff had been previously required to assist in repairing the chain, and in this case he responded in good faith to the call of the operative to put it in place.
"Under such circumstances, to prevent a suspension of work in the mill we are unable to see why the practical common-sense rule should not apply which would authorize the operative of the machine to call for assistance upon any one of the employees whose business it was to assist in making repairs."
In Daley v. American Printing Co., 150 Mass. 77 (22 N.E. 439), the plaintiff was injured while placing a belt upon a pulley. One of the issues of the case was whether he was required to perform his task. In passing upon this question the court observed:
"There was evidence tending to show that the plaintiff was employed on work which required him to use the elevator; that the elevator was operated by a belt which passed over a pulley situated about twenty feet from the elevator; that the belt was off from the pulley; and that the plaintiff's injury occurred while he was putting it on, in order to enable him to use the elevator in doing his work. It seems to have become a question, at the trial whether it was necessary for the plaintiff himself to attend to putting on the belt, under the circumstances which then existed. The plaintiff had been allowed, subject to an exception by the defendant, to show that there was nobody whose duty it was to put the belt on when it was off; and he afterwards called a witness, by whom he proposed to show further that the belt was frequently off, how it was put on, and who put it on; and `that there was not anybody specially charged with that; that everybody did it that had to use the elevator, — had to put the belt on.' This evidence was excluded. We think it was competent, as one important element of the plaintiff's case was to show *Page 500 that he was in the line of his duty in attempting to put on the belt at the time when he was hurt. The fact that the defendant afterwards introduced testimony to show that there was another man whose duty it was to put on the belts, serves to show the importance to the plaintiff of the evidence which was excluded; and indeed this also appears by the defendant's answer, as well as by the argument which has been addressed to us in its behalf. The jury might have believed the plaintiff's witness, if he had been allowed to testify, rather than the defendant's."
In the case before us there was no evidence that the defendant had in its employ anyone whose particular duty it was to move these cars; yet, there was much evidence to the effect that its employees frequently shoved the cars away from the roadway. Thus the witness, Peterson, who was in the defendant's employ up to approximately the time of the accident, testified that the crossing was blocked on many occasions; that the defendant's employees cleared it if they found time to do so; he was then asked:
"Q. What was done, if anything, to get the crossing cleared so the mill company's patrons and employees could use it? A. Well, it was always customary that the employees of the milling company, if they wanted to get in there with a truck or a car, they moved the cars themselves.
"Q. How often a day would that happen, — would they be working on those cars? * * A. Well, whenever a truck came in, — I couldn't say how often, — but whenever a truck came there to get into the flour mill, or either to come into the elevator there, back of the elevator."
The witness Norgard testified:
"Q. Mr. Norgard, during the time that you were there, how often each day were the employees of the *Page 501 Terminal Milling Company called upon to work on and about these tracks at this crossing? A. Well, the first time there, it was quite often that we would have to go up * * the first time I worked there for the company, the first year, in 1923, it was quite often that we would have to go there and shove the cars out.
"Q. And this last time? A. This last time? Well, I didn't work there long; it was on that evening shift, so I think there was two times before this that I shunted cars off from that crossing."
The witness Prudham, driver of the truck that brought the load of sacks to the mill, testified:
"Q. About how often would you go down there? A. Oh, sometimes there two or three times a week, and maybe the next week I wouldn't be there that often. * *
"Q. When you came there, how often was it that you found the tracks obstructed with cars at the place where the empty cars came out of the unloading shed of the dock commission. A. Well, it was very seldom I went there it wasn't blocked.
"Q. And when they were blocked, what was the usual method of getting them cleared? * * A. Went over to the flour mill and informed them over there that the tracks were blocked and we had sacks for them.
"Q. And what was then usually done? * * A. They generally brought out that car mover, and we got around them and shoved them out of the road.
"Q. Whose men usually engaged in that operation? A. The flour mill."
The witness used the term "car mover" as designating the pinch-bar which we have previously referred to. We believe that the foregoing constitutes a sufficient basis to support a finding that Walters was acting within the scope of his employment when he undertook to clear the roadway of the empty cars *Page 502 upon the occasion in question. It is true that the witnesses did not mention Walters' name as one of those who had assisted in moving cars upon prior occasions; nor did they mention some manager of the flour-mill as having authorized the mill's employees to engage in this type of work. But the driver Prudham, as appears from his foregoing testimony, stated that he "went over to the flour-mill and informed them" whenever cars blocked his approach to the mill. It likewise appears that Norgard, who was assisting in moving the car at the time of Walters' death, had previously engaged in similar work. Since the mill company had no employee whose express duty it was to move cars, we believe that the foregoing evidence was sufficient to sustain a finding that Walters was acting within the scope of his employment when he moved the car.
The defendant contends that the complaint fails to allege that the defendant was aware of the fact that employees of the mill company frequently moved cars. The complaint alleges: "It was the custom of the employees of said milling company, in cases where cars had been left standing on said tracks, to cause said cars to be removed from said tracks," so that they would not interfere with access to the mill. The charges of alleged duty upon the defendant's part that follow this allegation are clearly predicated upon the theory that the defendant knew of the acts of the employees of the milling company in moving the empty cars. No motion or demurrer was filed to the complaint. Shortly after the trial started the plaintiff offered evidence that it was the practice of the employees of both companies to shove the empty cars out of the way whenever they blocked *Page 503 the crossing; the question of plaintiff's counsel to the witnesses that brought forth this information designated this practice with the word "custom"; this brought forth from the defendant an objection that the answers sought were "incompetent, irrelevant and immaterial, and not within any of the issues of this case." Later the objection was amplified with the addition of "no allegation that it was a custom as far as the defendant was concerned, or that the defendant knew of the custom of the milling companies' employees." Thereupon plaintiff sought leave to amend his allegation in regard to the custom by adding the words, "all of which defendant well knew." The trial judge observed that the proposed amendment did not change the cause of action; but after his attention had become diverted to the rather remote period of time covered by the proposed proof, he sustained an objection to the amendment as well as the evidence. Nevertheless the court admitted the following evidence, which showed that the defendant's foreman Furgeson was aware of the fact that employees of the mill company sometimes moved the empty cars from the roadway with the knowledge of the defendant. Thus the witness Peterson testified:
"What was done, if anything to get the crossing cleared so the mill company's patrons and employees could use it? A. Well, it was always customary that the employees of the milling company, if they wanted to get in there with a truck or a car, they moved the cars themselves.
"Q. How often a day would that happen, — would they be working on those cars? A. Well, whenever a truck came in, — I couldn't say how often, — but whenever a truck come there to get into the flour mill, or either to come into the elevator there, back of the elevator. *Page 504
"Q. Do you know whether that was known to, for instance, Mr. Furgeson? A. Why yes, it was.
"Q. Did you ever see him around there when the mill employees were moving cars? A. Yes, sir, several times."
Other evidence with a similar tendency was offered. But in view of the fact that our Constitution forbids us to concern ourselves with the weight of the testimony, we need quote no more for the purpose now before us.
From the foregoing it is evident that there was testimony before the jury which if believed was sufficient to show that the defendant knew of the employment of the milling company's men in moving the cars. In the absence of a motion or demurrer to the complaint, it was clearly sufficient to warrant the admission of this evidence. The complaint alleged the roadway, that on many occasions it was blocked with standing cars, and that it was the custom of the employees of the milling company to move these cars into a position where they would not block the roadway. It is true that the complaint alleges this particular feature of the employment of the milling company's men with the word "custom," but it is apparent that custom was used when employment, practice or duty was meant. We thus find no fault with the complaint, and it follows from the foregoing review of the testimony that there was evidence to the effect that Walters was acting within the scope of his employment when his injury befell him, and that the defendant was aware of the fact that the employees of the milling company, on many occasions, were at and near the intersection of the roadway, engaged in the task of shoving the cars out of the way. *Page 505
These facts, established apparently to the satisfaction of the jury, brought the plaintiff's case within the interpretation of the Employers' Liability Act previously enunciated by this court. In Saylor v. Enterprise ElectricCo., 106 Or. 421 (212 P. 477), our previous interpretation of the act so far as it relates to the effect of the act upon the employees of third parties is summarized thus:
"* * In Rorvik v. North Pacific Lumber Co., 99 Or. 58 (190 P. 331, 195 P. 163), we ruled that where an employee of one corporation employer is injured or killed by the failure of another corporation employer, although not an employer of the one injured or killed, to use the precaution required by the Employers' Liability Act, the employee or his beneficiary could maintain an action against the culpable employer under the provisions of the Employers' Liability Act. The opinion inClayton v. Enterprise Electric Co., 82 Or. 149 (181 P. 411), is authority for the same doctrine; and a statement inTurnidge v. Thompson, 89 Or. 637, 653 (175 P. 281), is an approval of the doctrine."
The above views are reiterated in Warner v. Synnes, 114 Or. 451 (230 P. 362, 235 P. 305, 44 A.L.R. 904); they are expressed to like effect by the Circuit Court of Appeals for this circuit in Pacific States Lumber Co. v. Bargar,10 F.2d 335. Hence the deceased at the time the accident befell him was protected by the high degree of care prescribed by the act, provided the Dock Commission was engaged in a type of work which subjected it to the terms of the act. This issue of fact was properly submitted to the jury. The court, after explaining to the jury those portions of the act which related to the employment of the deceased, presented to them the issue whether *Page 506 the deceased was required by his employment to move cars, and then told the jury:
"Your next inquiry will be whether the defendant was, as owner, contractor or subcontractor, in charge of, or responsible for work involving risk or danger to the employees or the public, and this is a question for your determination; your conclusion upon the question to be based upon all of the facts and circumstances and evidence in the case."
It is argued that the lower court erred when it received evidence that the roadway at the point of its crossing with the railway, was a place of danger. This testimony came from the witness Stillwell who was in charge of operations for the Dock Commission, and was to the effect that he spoke to Mr. Hegardt and informed the latter that the place in question was dangerous, and that Mr. Hegardt agreed that it was in fact dangerous. It was the contention of the plaintiff that the work in which Walters was engaged at the time of his death subjected him to danger, and that the defendant should have taken those precautions for his safety which are enumerated in the Employers' Liability Act. The foregoing evidence was admissible as proof of these contentions. This view of the situation also rendered admissible testimony that while Mr. Stillwell was in charge of the operations around the track shed, a rule was in force among the employees of the defendant, which required someone to see what conditions existed at the crossing before a car was moved out of the shed. This evidence was admissible upon the issue of danger and the practicability of the additional means of safety which the plaintiff contended should have been taken on behalf of Walters. *Page 507
When this action was instituted, Ruth W. Walters, widow of the deceased, was the plaintiff. After the jury had been selected, but before the opening statements were made and before any witnesses had been sworn, the plaintiff offered an amended complaint. The amendment added as a party plaintiff, the infant daughter of the deceased; a guardian had previously been appointed for her. The objection of the defendant was the following: "We enter an objection to the entry of the amendment at this time, may it please the court, and I would like an exception." The original Employers' Liability Act provided:
"If there shall be any loss of life by reason of neglects or failures or violations of the provisions of this act * * the widow of the person so killed, his lineal heirs, * * shall have a right of action. * *" Section 6788, Or. L.
1921 Session Laws, Chapter 26, amended the foregoing so that it now reads:
"If there shall be any loss of life by reason of the neglects or failures or violations of the provisions of this act * * the surviving widow or hubsand and children * * shall have a right of action * *."
Section 102, Or. L., provides that the court, before trial, may allow any pleading to be amended by adding the name of the party. The amendment should have been proposed before the jury was impaneled. However, we notice that in offering the amendment, counsel for the plaintiff stated: "For some time the matter has been under discussion, and counsel were notified about a month ago that the plaintiff would seek to amend her complaint, and some days ago a copy was left with counsel. That was on the 6th *Page 508 of April, 2 weeks ago almost." Nothing appears in the record challenging this statement, nor does it appear that the defendant was in any way inconvenienced or prejudiced by the fact that the amendment was offered a little late.
Section 107, Or. L., states: "The court shall in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party." The foregoing, together with Article VII, Section 3c, Oregon Constitution, precludes a reversal of the decision below for this irregularity. We have examined the other assignments of error and find no merit in them.
Finding no reversible error in the record, it follows that the judgment below is affirmed. AFFIRMED.
RAND, C.J., and COSHOW and McBRIDE, JJ., concur.