Dunn v. Orchard Land Co.

Mr. Justice Burnett

delivered tbe opinion of tbe court.

Tbe vital question urged by the defendant is whether or not tbe action is governed by what is known as tbe “employers’ liability law,” a measure adopted by tbe initiative process at tbe general election held in November, 1910: Laws'1911, Cb. 3. It is provided by Section 1 of that act that “all owners, contractors, subcontractors, corporations or persons whatsoever, engaged in tbe construction, repairing, alteration, removal, or painting of any building, bridge, viaduct, or other structure, or in tbe erection or operation of any machinery,” are required to thoroughly inspect all materials used, and to construct all scaffolding, staging, false work, or other temporary structure with a safety factor of four times tbe maximum weight to be sustained by tbe structure. Tbe act prescribes that all scaffolding, staging or other structure more than 20 feet from the ground or floor shall, among other things, be provided with a strong safety rail or other contrivance to prevent anyone'from falling therefrom. The section under consideration, after providing various duties incumbent upon persons in charge' of electrical transmission, closes with 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”: Laws 1911, Ch. 3; L. O. L., p. xxxvi. The act provides a criminal penalty for anyone responsible for its observance who shall violate its terms. By Section 6 it is provided that “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.” The question of the applicability of this act was presented to the trial court by various requests to instruct on the subject of contributory negligence and assumed risk and exceptions to the charge of the court, indicating to the jury that those questions were not properly involved in the.action.

In considering what is known as the “factory act” (Section 5040, L. O. L. et seq.), this court, speaking by Mr. Chief Justice Bean, in Hill v. Saugested, 53 Or. 178 (98 Pac. 524, 22 L. R. A. (N. S.) 634), held.that the defense of assumption of risk was not admissible under that statute, on the ground that, inasmuch as a criminal penalty was provided for an employer who disobeyed the act, the employee could not be considered as having entered into a contract which involved a violation of the law on that point by the other contracting parties. In other words, the statute, having made it a criminal offense on the part of the employer to create or maintain an avoidable risk, the contract of the workman for employment will not be construed to include such a hazard, because that would be to contract for a violation of law by at least one of the parties, and hence void as against public policy. This ruling was followed by Mr. Chief Justice McBride in construing the same statute in Love v. Chambers Lumber Co., 64 Or. 129 (129 Pac. 492). In the later case of Dorn v. Clarke-Woodward Drug Co., 65 Or. 516 (133 Pac. 351), the same principle was applied to the act now under consideration.

1. Haying in mind these precedents, excluding the defense of assumed risk, and remembering that the statute itself expressly eliminates contributory negligence except in mitigation of damages, it remains to determine whether the complaint states a case within the purview of the “employers’ liability law,” so called. The statute exerts its authority against “all owners * * or persons whatsoever engaged * * in the erection or operation of any machinery.” It thus takes cognizance not only of those who engage in building but also those who operate machinery, and, where it declares that “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,” it does not in good reason restrict the benefits and requirements of the law to particular persons mentioned in the beginning of the section, but, rather, enlarges and expands the scope of the act. The statute lays its commands not only upon those engaged in building or in the transmission and use of electricity, but also upon those other persons included in larger category set out in the last clause of the first section.

2. That the slab haul was machinery is substantially admitted by the language of the answer already quoted. The Encyclopedic Dictionary, under the title “Machine,” gives this definition: “An instrument of a lower grade than an engine, its motor being distinct from the operating part, whereas, the engine is automatic as to both. It is also distinct from a tool, as it contains within itself its own guide for operation. A contrivance by means of which a moving power is made to act upon any body and communicate motion to it. Machines are simple and compound, complex or complicated. The simple machines are the six mechanical powers, viz., the lever, the wheel and axle, the pulley, the inclined plane, the wedge, and the screw. In compound machines two or more of these powers are combined for the production of motion or the application' or transmission of force.” It is stated in the Standard Dictionary that a machine is ‘ ‘ any combination of inanimate mechanism for utilizing or applying power.” The slab haul in question consisted of a combination of several numbers of the wheel and axle. It comes clearly within the definition of “machine” already given. Its operation depended upon the motion of its several parts in connection with each other. It was not a tool which is commonly handled by an operator, but, on the other hand, was a stationary appliance which responded to the application of power, and produced certain results growing out of its operation. Both by the pleadings and the evidence it is shown to be within the definition of “machinery.”

3. The complaint clearly discloses a work involving risk or danger to the employee engaged therein, so that under the concluding words of the section, as well as under the first part mentioned, the plaintiff has disclosed a ease within the purview of the statute. Concluding that the statute does apply to the case made in the complaint, it follows that the court was correct in excluding from the jury the defense of contributory negligence and assumed risk. In respect to contributory negligence the court correctly instructed the jury, under Section 6 of the law, that it could be considered in this action only in mitigation of damages.

4. Error is also predicated on the refusal of the court to give an instruction to the effect that, if the injury was caused by an inevitable accident, the plaintiff could not recover. No situation of that kind is disclosed by the pleadings or the testimony. An instruction on that point, therefore, would have been merely academic and hence improper. We find no error in the record.

The judgment of the Circuit Court is affirmed.

Affirmed.

Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Ramsey concur.