*329Argued on rehearing July 16, reversed in part and affirmed! in part October 22, 1918.
On Rehearing.
(175 Pac. 659.)
In Banc.
The defendants Marshall-Wells Hardware Company and R. A. Camp appealed from a judgment awarded to Thomas Malloy, the plaintiff, for personal injuries. On September 11, 1915, Malloy was standing at the edge of a hatch cut in the second floor of a bam, which was maintained by the company, for the purpose of receiving a box of wood which was being hoisted from the first floor by means of pulleys, a rope and a horse, and as the box reached the second floor and just as Malloy took hold of the box to pull it clear of the opening a sling rope which was used to anchor the snatch block on the first floor broke, causing the box and the plaintiff to fall through the hatch and to the first floor. The appeal was first presented to and decided by a single department of this court: Malloy v. Marshall-Wells Hardware Co., 173 Pac. 267. A petition for a rehearing was granted and the appeal was argued and submitted to the court sitting in banc.
The Marshall-Wells Hardware Company is a corporation engaged in the wholesale hardware business. The company owns a large warehouse in Portland, and it also maintains a bam at 17 th and Love joy Streets. J. E. Harvey occupied the position of shipping clerk and as such had charge of the shipping department ; and he not only had charge of the teamsters when “outside of the bam,” but he also had authority to hire and discharge teamsters. For about ten years R. A. Camp acted as superintendent for the cor*330poration and had “direct charge of the office affairs and general charge of the warehouse, the machine shop and stables.” In April or May of 1910, Camp employed Thomas Malloy to work for the company. Malloy began work by helping in the stockroom and after “a month or so” and at the direction of Camp “he was put on as a teamster.” In October, 1910, Camp assigned Malloy to the position of barn boss at the company’s stables located at 13th and Johnson Streets and referred to in the record as the old barn. After Malloy had been at the old barn about a week, he was directed by Camp to go to the new bam which had just been constructed at 17th and Love joy Streets and to take charge of it. The barn at 17th and Love-joy Streets is a two-story building. Stalls for horses are built along the west or 17th Street side of the first floor and along the east side of this floor are located a dining-room, washroom, oilroom and a room which most of the witnesses called the “auto shed.” The dining-room and washroom were maintained for the use of teamsters working for the company. On the second floor and on the Lovejoy Street side of the building are apartments, consisting of two bedrooms, a living-room, kitchen, pantry and a bathroom. The remainder of the second floor or “loft” is used for storing hay and gráin for the horses, hay and excelsior used for packing, and other materials. There is a hatch in the second floor. The witnesses described this opening as being about four feet one way and six feet the other way. A plat received in evidence shows the dimensions tó be six feet one and one half inches by four feet eight inches. The floor next to the east side of the hatch had become smooth and slippery by reason of the fact that most of the hay hoisted through the hatch had been taken to the east side of the barn, *331and the same hay when dropped through the hole to the first floor was first shoved over the east side of the opening. There was a considerable quantity of wood, consisting of scraps and the ends of boards and the like, in or next to the auto shed. The company has a number of boxes on wheels, sometimes called dirt-trucks, which are used in the bam for various purposes. These boxes are three or four feet long, two or three feet wide and about two feet deep. On the day of the accident the plaintiff and W. J. Miller, a teamster in the employ of the company, filled two or three of these boxes with wood and pushed them over to a place underneath the hatch so that they could be hoisted by means of a rope and pulleys through the hatch and onto the second floor. A rope ran through and hung from a pulley fastened to a hay carrier track above the hatch. "William Malloy, a son of the plaintiff, nailed a 2x6 board across the end of one of the stalls, looped a sling-rope around this board, fastened a snatch-block to the sling-rope and through the snatch-block ran one end of the rope which hung from the pulley above the hatch and then hitched a horse to that end of the rope. The other end of the rope was fastened to one of the boxes, containing wood, so that it could be hoisted to the second floor. The plaintiff and Miller ascended the stairway to the second floor to receive the box at the edge of the hatch. William Malloy drove the horse. During the process of raising the box, to use the language of the plaintiff, it “came kind of crooked through the hole, one corner of it, the comer of it caught in the joist and just stuck.” By means of a stick the plaintiff “got the box loose and it came up over the floor, and I grabbed hold of it to pull it in and give it a jerk to pull it in on the floor. And at the same time the box jerked *332me and it went down through the hole and brought me with it.” Miller, who was at the hatch at the time of the accident, testified that the floor “was slippery there and he (Malloy) couldn’t hold himself with the rope, and he went with it.”
The complaint alleges that the defendant Camp as superintendent of the corporation had charge and control of the barn and the work to be done there; and that Camp ordered the plaintiff to remove the wood and that the latter was hurt while attempting to comply with such order. The complaint is framed upon the theory that Malloy was working for the corporation and executing an order of Camp when injured; and that the circumstances bring the plaintiff within the protection of the Employers’ Liability Act, and that therefore both the Marshall-Wells Hardware Company as the employer and B. A. Camp, as the alleged foreman or person in charge of the work, are liable in damages for the injuries sustained by the plaintiff. The plaintiff charges that the defendants were negligent because they: (1) failed to maintain a guard-rail around the shaft; (2) failed to provide a system of communication by means of signals; (3) failed to provide a sufficiently strong rope with which to fasten the anchor pulley or snatch-block, and neglected to test the sling-rope which was used; (4) maintained a shaft which was so small that articles could not be hoisted through it freely and without striking against the under side of the second floor, thus involving a risk or danger; (5) and permitted the flooring at the edge of the hatch to become slippery, and hence creating a risk or danger which would be involved in the work of receiving articles hoisted through the hatch.
The defendants filed separate answers and each denies that Malloy was working for the company or *333carrying ont an order given by Camp when injured, or that either of the defendants was negligent in any of the particulars enumerated by the plaintiff. Each defendant alleges affirmatively as a further and separate defense that Malloy was injured
“when the said plaintiff was occupied in and about his own personal business and affairs and such as had no connection with or relation to the business or affairs”
of the Marshall-Wells Hardware Company.; and that his injury was “the result of his own acts,” and if there was any element of negligence it was not the negligence of either defendant. In addition to the denials and the defense already mentioned the company pleads two other defenses, one of which is to the effect that the Circuit Court lost jurisdiction when the company filed a petition and bond for the removal of the cause from the Circuit Court for Multnomah County to the District Court of the United States for the District of Oregon, while the other avers that a judgment was rendered against the plaintiff in an action prosecuted by him against the corporation for the injury received in the bam.
The assignments of error relate to the refusal of the Circuit Court to grant the application for removal to the federal court, the admission of certain testimony given by the witnesses Frank A. Doney, Philip Erickson and William Malloy, denial of the motion for an involuntary nonsuit, the giving of specified instructions, and the refusal to give certain instructions requested by the defendants.
Reversed in Part and Aeeirmed in, Part.
For appellants there was a brief over the names of Messrs. Emmons & Webster and Mr. J. L. Conley with oral arguments by Mr. Lionel It. Webster and Mr. Conley.
*334For respondent there was a brief over the names of Mr. A. M. McGurtain, Mr. J. W. Kaste, Messrs. Wilbur, Spencer & Beckett and Messrs. Bauer & Greene, with oral arguments by Mr. McGurtain, Mr. Kaste and Mr. S. G. Spencer.
HARRIS, J.21. The evidence shows that Malloy brought an action against the Marshall-Wells Hardware Company for damages on account of the injuries sustained by him and that such action terminated in an involuntary judgment of nonsuit. This judgment did not bar the instant action: Section 184, L. O. L.
The plea that the Circuit Court lost jurisdiction when the company filed a petition for removal cannot be sustained, for the reasons stated by Mr. Justice Mc-Camant in the opinion rendered after the first hearing of the appeal.
An examination of the record convinces us that the testimony of the witnesses Frank A. Doney, Philip Erickson and William Malloy was properly received and was admissible for the purposes stated in the original opinion.
We are urged to pause and consider most carefully before definitely committing ourselves to the construction which the original opinion places upon Chapter 332, Laws of 1913, amending Section 171, L. O. L. Another minute examination of this question persuades us to concur with the reasoning, so convincingly expressed by Mr. Justice McCamant, and we therefore reaffirm what is said in the original opinion concerning the form of a bill of exceptions. To the argument that this conclusion overrules certain prior decisions, we reply by borrowing the language used by John Philpot Curran when presenting a motion for a new trial for A. H. Rowan: the high office of the *335court “is never so dignified as when it sees its errors and corrects them.”
22. The remaining assignments of error relate to the denial of the defendants’ motion for a nonsuit and to the giving as well as the refusal to give certain instructions; and the decision of all these assignments of error depends upon whether Malloy was injured while working for the company. The plaintiff contends that he was engaged in work for the corporation and that he was performing such work in compliance with orders given by Camp, the superintendent, while the defendants strenuously insist that Malloy was hurt at a time when he was working for himself and not for the company. If there was no evidence at all tending to show that Malloy was working for the Marshall-Wells Hardware Company then the trial Court erroneously instructed the jury and the judgment must be reversed; but if there was evidence tending to show that Malloy was injured while performing work for the company, then the question of whether or not he was in truth working for the company was one of fact for the jury to determine from the evidence and that question of fact cannot be re-examined or decided by this court: Sullivan v. Wakefield, 65 Or. 528, 535 (133 Pac. 641). It is necessary to give an account, more or less in detail, of the duties imposed upon the plaintiff, the authority exercised by Camp, the hatch and appliances used for hoisting articles to the second floor of the barn,'and the wood hauled to the barn.
In his capacity as barnman or bam boss Thomas Malloy was obliged to arise about 4:15 each morning and feed, water and curry the horses so that they would be ready for the teamsters to harness by about 6:30 a. m. After the teamsters had gone with the *336horses the plaintiff cleaned the ham and this work usually kept him engaged until about noon when the teamsters returned with the horses so that they could again be watered and fed. From one o’clock until about 4 p. k. Malloy did not have much work to do except to answer the telephone and wait on such customers as might wish to purchase gasoline, a supply of which was kept at the bam not only for the automobiles used by the company but also for sale to the public. About 4 p. m. Malloy started in to make preparations for the return of the teams and vehicles and as a mle he did not complete his day’s work until 8 or 9 p. m. If, however, he washed the tracks, wagons or automobiles his work was not finished until a later hour. If a horse became sick at night and needed attention, Malloy “had to get up and do it.” As Malloy expressed it, he “was on duty 24 hours a day.” No employees worked under Malloy; he had no control over the teamsters; he was not a foreman. Whenever hay was hoisted to the second floor, however, Malloy “attended to the taking of this hay up there; he managed that” and the men sent to assist in hoisting the hay did what Malloy told them to do while engaged in that work. Malloy had no authority to buy or sell horses -or to purchase feed except possibly in small quantities; and, moreover, he was obliged to secure the approval of Camp before he could procure anything from the warehouse for use in the bam. Malloy’s books showing sales of gasoline were O.K.’d by Camp. On practically all matters, except the daily routine work done in the barn, Malloy first reported to Camp and secured directions before attempting to act.
E. A. Camp had acted as superintendent since 1904 and had “direct charge of the office affairs and gen*337eral charge of the warehouse, the machine shop and stables.” Several of the teamsters were hired by Camp although Harvey seems to have employed most of the teamsters who entered the service of the company. The bamman called upon Camp for orders, but if Camp could not be found then Harvey was called upon. Thomas Malloy says that Camp visited the bam regularly once or twice a day with the exception of a single period covering a few weeks. "W. J. Miller, who had charge of the bam in February, 1916, stated that Camp “used to come up to the bam every morning.” Camp bought and sold horses for the company. Thomas Malloy testified that the hatch was enlarged pursuant to orders given by Camp. At some time subsequent to September 11, 1915, William Malloy built a railing around the hatch; afterwards he took the railing down, but according to his testimony, “Mr. Camp told me to put it back afterwards.” A notice containing rules and regulations for the guidance of teamsters and the bamman over the letters R. A. C., Camp’s initials, was posted near the door to the washroom. Camp caused a small workshop to be built on the second floor ¿nd a paint-shop on the first floor. Camp exercised supervising authority not only over Thomas Malloy, but also over William Malloy, who acted as barnman from September 16,1915, to February, 1916, as well as over W. J. Miller, who succeeded William Malloy.
The hatch was in the second floor when the company first occupied the barn. An ordinary hay-carrier and track were built in next to the roof. The hay-carrier was so arranged that hay and other articles could be hoisted through the hatch and by means of the carrier conveyed to other parts of the loft. After being used a couple of years the hay-carrier broke and a pulley *338was then fastened to the carrier track above the hatch and a rope was run through the pulley. Thomas Malloy swore that “it was the men from the warehouse that first rigged it (block and tackle) up.” At first the hatch was only three feet by four feet in size and had but one door; but about a month after the company took possession of the bam the opening was enlarged so as to make its dimensions about four feet by six feet, and two doors were placed over the hatch, although the witness W. J. Miller says that the doors were open “mostly.” Thomas Malloy testified that the hatch was enlarged pursuant to directions given by Camp. The pulley and rope were used in hoisting hay, grain, feed, wood and other articles from the first floor through the hatch and on to the second floor. William Malloy says that the hay and grain were hoisted to the second floor “afternoons and evenings, just depending on when the grain and hay came,” and
“if there was enough teamsters, the teamsters would help. If there was not, sometimes they would send up a man, and sometimes they would not, to help put it away”;
but if, however, a carload of hay or grain was received at the bam “they always put a gang on it.” When „ they “put a gang on it” the hay or grain was pulled “up by hand,” and a snatch-block or anchor-pulley was not used. Whenever articles were not hoisted to the second floor “by hand” the snatch-block was used just as it was used when the plaintiff was hurt.' Three teamsters, Philip Erickson, Ed Lahey and Eex Cable, each testified that he had helped Malloy hoist hay with the use of the two pulleys and rope; and W. J. Miller, another teamster, stated that he had assisted in taking wood as well as hay to the second floor with the aid of the two pulleys and the rope. Cable said that during *339the time of his employment from 1910 to 1912 the snatch-block was fastened to a board nailed across the end of a stall as many as 15 or 20 times. When asked: How many times he had “rigged np that apparatus to take things upstairs ? ’ ’ William Malloy answered : ‘‘Several times, a good many times. ’’ Thomas Malloy stated that the anchor-block and sling-ropes were “used 10 or 12 times a year.” When the hay-carrier was installed a piece about 30 feet in length was cut off the main rope which was used on the carrier and this piece was made up into four sling-ropes. The original purpose was to use these sling-ropes “as and for a sling-rope * * before the track was broke down, ’5 but after the pulley was fastened to the hay-carrier track one of the sling-ropes was always used “for an anchor rope” for the snatch-block for the reason that, according to the testimony of William Malloy, “there was no other rope.” The plaintiff testified that the sling-ropes were the only ropes that were “around there for any such purpose as that”; and that they were “used for all kinds of purposes there in the barn.” Thomas Malloy also stated that whenever a sling-rope was needed for the purpose of anchoring the snatch-block no particular one was selected but “we just took whichever one came.” When the plaintiff and Miller reached the second floor the plaintiff threw two or three of the sling-ropes down to the first floor so that William Malloy could use one of them for anchoring the snatch-block, and it was one of these ropes that was used for tying the block to the board nailed across the end of the stall. Beferring to the work of hoisting articles to the second floor with the use of the two pulleys or blocks and the rope, Thomas Malloy was asked: “Was Camp ever around there when you were doing this *340work?” and he answered thus: “Well, I think he was-sometimes: I could not say for sure though. He was there sometimes when there was hay being hoisted up and grain also.”
The accident occurred about 5 o’clock Saturday afternoon. While the teamsters did not ordinarily finish their work by noon on Saturdays, still if a teamster did complete his work by noon or at any hour in the afternoon before the usual quitting time and returned to the bam with his horses the remainder of the day was his “own time,” and he owed no further duties to the Mar shall-Wells Hardware Company until the following Monday morning. William Malloy, who drove the horse when his father was hurt, worked for the company; but he had finished his work and was helping with the wood because his father asked him to help. W. J. Miller “pulled in the barn about 4 o’clock” and that was the end of his “day for Marshall-Wells”; and not having anything else to do and wishing to help the plaintiff, Miller helped Thomas Malloy put the wood upstairs when asked by the latter. The plaintiff had not done all his chores when injured, although he ‘ ‘had part of them done. ’’
It will be recalled that Camp directed the plaintiff to move to the new barn in October, 1910; and it may be added that when the plaintiff went to the new bam he did so with the understanding that he was to move his family to the barn and live there. Thomas Malloy testified that Camp “told me that I should move my family to those rooms as quick as possible.” The plaintiff moved to the apartments in the bam; but his wife and children were not able to follow him until five or six days afterwards. Thomaé Malloy states that when he moved into the apartments he found “a big pile of wood,” consisting of ends of boards piled *341on the second floor of the bam and next to a door leading into the apartments. William Malloy said that the pile contained “a scant cord.” In connection with the incident of the plaintiff being directed to move to the new bam with his family a very significant circumstance is found in a conversation which plaintiff claims he had with Camp. Thomas Malloy says that Camp came to the new barn one morning after the first pay day “and looked around and saw that everything was all right, ’ ’ and before going away he said:
“ ‘Tom, there should be some arrangements made about your wages or salary here.’ I stopped and thought it over a minute or so and says, ‘Well, it is up to you. ’ He said, ‘Tour salary will be $70 a month; those rooms upstairs, free wood, free water, free light and free wood.’ Now, the free wood part of it, he drawed back a little bit on that. He said to me that he didn’t think I would ever have to buy any wood, that there would be all kinds of scrap wood at the warehouse; so I took it for granted that my wood would be free.”
The room on the first floor, referred to as the dining-room, was furnished with tables, benches and a stove for the use of teamsters at the noon hour. The teamsters used the stove for warming themselves and for heating coffee. There were two places in the bam where wood was burned: one, the apartments where the plaintiff lived with his family; and the other, the stove used by the teamsters. With the exception of four or five loads of cordwood and slabwood purchased by the plaintiff, and two sacks of coal which the company caused to be sent to the bam for the use of the teamsters, the only fuel burned by the plaintiff or the teamsters came from the warehouse. The evidence shows that there was a daily accumulation of ends of boards and scraps of wood in the warehouse where *342goods and wares were received and unpacked and again packed for delivery to customers. The defendants contend that while the plaintiff and teamsters were at liberty to help themselves to the wood which accumulated in the warehouse, nevertheless they were not obliged to do it, and the defendants insist, too, that the company did not recognize any obligation to furnish wood to the plaintiff or to the teamsters. The evidence shows that if at any time there was no wood on the first floor of the bam the teamsters went upstairs and took wood from the pile next to- the Malloy apartments. In further support of their position that the' company did not consider itself under any obligation to furnish wood to the plaintiff, the defendants point to the fact that on one occasion about two or three weeks prior to the accident the plaintiff hauled three or four loads of wood from the warehouse in the evening after working hours. For the purpose of showing that the company recognized an obligation to furnish wood to him, the plaintiff points to evidence showing that at different times covering the period from 1910 to the date of the accident several teamsters hauled wood to the bam during worldng hours and pursuant to the orders of Harvey or Camp; and that wood was not only hauled to the bam by those teamsters, but was taken upstairs by them in compliance with directions given by Harvey or Camp. The plaintiff also explains that when he hauled the three or four loads after working hours he was following orders sent to him. While it is true that the teamsters sometimes hauled boxes filled with wood from the warehouse when they went to the bam for noon, it is also true that teamsters hauled wood from the warehouse to the barn during working hours. Frank A. Doney worked in the warehouse a while, cleaning up part *343of the time,” and pursuant to directions given by Jim Oarr, who had control over that work, Doney “cleaned and swept around there, picking up odds and ends and pieces of boards” and “laid them aside until morning to be sent down on the elevator” for “they were to go to the barns.” Commencing with 1910 Rex Gable worked as a teamster for about two and a half years, and he says that during that period the teamsters hauled wood from the warehouse and put it under the stairway in the bam, “except sometimes they was taken upstairs.” Philip Erickson worked as a teamster from April, 1913, until June, 1916, and he testified that in the fall of 1915 at some time prior to the time when Malloy was hurt he hauled three or four loads of wood from the warehouse in obedience to orders given by Harvey, and that he deposited the wood in the bam “right by the comer behind the little auto shed”; and Erickson also stated that he did this hauling “as a special trip” and that he did not do it when going to or from his work at night. Ed Lahey, another teamster who was in the service of the company for a year commencing with April, 1915, testified that he hauled five or six loads of wood from the warehouse to the barn before Malloy was hurt; that Harvey told him to haul this wood; that he did the hauling during working hours and not at the noon hour or in the evening and that he piled the wood “right in the automobile garage.” W. J. Miller worked for the defendant for a period of seven months commencing with August 3, 1915, and he testified that prior to the time of the accident he hauled a load of wood about 11. o ’clock one morning from the warehouse to the barn in obedience to directions given by Harvey “to haul it up to the bam ’ ’; and that he put the wood “ back along the automobile shed there.” Another witness, Amos A. *344Abert, drove a truck from October, 1913, until November 5, 1914, and he told the jury that he frequently took wood from the warehouse to the barn “just whenever we didn’t have anything to do and there was anything to take up.” This witness also testified that at least on one occasion Harvey told him to take wood from the warehouse to the bam and to put the wood “up in the loft.” Abert further stated that about three months before he left the service of the company, and while at the warehouse, Camp told me to take “the wood (pieces of boxes in the warehouse) up in the barn and put it up in the loft. ’ ’ The load hauled “by orders of Mr. Camp” and the one hauled “by orders of Mr. Harvey” were hoisted by means of a block and tackle through the hatch and on to the second floor and then piled next to Malloy’s apartments by Abert and some other drivers. At least one of the loads hauled by Abert was taken to the bam during working hours, and the fair inference is that the other load was also, hauled during working hours. It appears from the testimony .that for some indefinite period after 1910, wood hauled from the warehouse was deposited near the foot of the stairs in the bam. Malloy had constructed a bin near the foot of the stairway for the purpose of holding the wood deposited there. It appears that some of the teamsters had thrown some waste into the bin. Upon discovering this waste and to avoid the danger of fire, Camp ordered Malloy to tear out the bin and clean- up the floor at that place. Malloy obeyed the order,, tore out the bin and moved the bin and the wood upstairs; and thereafter apparently all or at least most of the wood taken to the barn, when deposited on the first floor, was placed in or against the so called auto shed. During the year 1915 the company added three stories to its warehouse, *345making seven in all. An unusually large quantity of ends of boards accumulated at the warehouse as the result of this construction work. When Thomas Malloy was hurt ten or fifteen loads had been hauled and deposited at or near the “auto shed”; and in connection with the fact that there was such a large quantity of wood dumped at this place on the first floor of the barn it is appropriate to call attention to a conversation which Thomas Malloy claims to have had with Harvey a short time, probably three or four weeks, before the accident.
In the language of Thomas Malloy, while a witness,
“Mr. Harvey, the shipping clerk, came over from the warehouse to the barn, and he stood around a little while and then he says, ‘Tom, have you got any room for wood?’ I said, ‘All kinds of it.’ He asked me where I was going to put it. I told him over in that comer over there [describing it * * ]. He said he would send someone up there to the bam that would back the teams in in unloading. I asked him in what way he was going to send it and he said he would send it in boxes and barrels and such like as that. I told him that it would not be very long, just while the men were dumping it, and so he didn’t say any more, but went and sent the wood up, and he sent five or six or eight or ten loads, probably ten loads.”
Referring to the three or four loads of wood hauled one evening after hours, the plaintiff says that two or three weeks before the accident,
“there was an order sent by one of the boys to me that the wood upstairs on the second floor * * (of the warehouse) * * had to be gotten out of there, and it would have to be taken out after working hours on account that they were leaving the big elevator upon those next stories that they were building higher and there was only one elevator in use, and they were using that all the time in working hours, and the wood *346had to come down on that elevator to be sent to the barn.”
The claim made by the plaintiff that he received orders to haul this wood finds some corroboration in the testimony of James A. White, the night watchman at the warehouse, who stated to the jury that “when Mr. Harvey left the place at the quitting hour he told me that Mr. Malloy was coming after the wood and for me to run the elevator” and that Harvey knew that this wood was ‘ ‘ going up to the barn. ” We now direct attention to a conversation which Thomas Malloy says he had with Camp a few days before the accident. The plaintiff points to this conversation in support of his contention that he was ordered by Camp to take the wood upstairs, and that therefore when the plaintiff was injured he was acting in obedience to orders given by Camp. According to the testimony of Thomas Malloy,
“Mr. Camp came in the bam one morning and those stalls were in bad condition and I called his attention again to them, and he went and looked at them and he said, ‘Yes, they are in very bad condition,’ and he said as soon as they got done work on the warehouse he would get some man to put new bottoms in the stalls. When we got through talking about that he went out in the other department, where the wagons and automobiles were kept, and he asked me, he says, ‘Tom, did anybody ever come here to look at any of these extra wagons we had here, those extra wagons for sale?’ And I says, ‘No, nobody ever came around here, only one man, and he didn’t intend to buy a wagon.’ He said, ‘Did he speak about it?’ I said, ‘Yes.’ He said,‘WThat wagons did he ask about?’ I said, ‘The Columbia Hardware wagon.’ And he said, ‘WThat price would he pay for it?’ I said, ‘Fifteen dollars and I knew you would not take that. ’ So he started over toward these extra wagons standing near *347the door and got ont by the opposite hall, and when he got out in the middle of the floor he said, ‘Tom, you have got a pile of wood there.’ I says, ‘Yes.’ He said — it was piled up and scattered around a little of it under the wagons — and he said, ‘You should have built a bin around it. ’ I says, ‘ There was no necessity for it, but when I got a little time I was going to move that wood upstairs.’ He says ‘Well, it should be taken out of here, it is in the road.’ ”
Mrs. Ann Malloy corroborates her husband by testifying that she was on the first floor cleaning up the quarters used by the teamsters and heard the following conversation between her husband and Camp:
‘ ‘ ‘ Tom, you have a big pile of wood here. ’ He says, ‘It is in the way under the wagons; you ought to pile it up or do something with it,’ and he says, ‘Well, I have not had time to take it upstairs; I was going to take it up just as quick as I got a little spare time. ’ ‘Well,’ he says, ‘something ought to be done with it; it ought to be got out of here.’ That is all that was said.”
It will be remembered that the box containing wood fell back to the first floor when the sling-rope broke. This box of wood was pushed into the dining-room and the wood burned by the teamsters in the stove in the dining-room. Camp placed William Malloy in the position of bamman after the accident, and on the following Monday evening after work hours the wood which had been piled at or against the auto shed was hoisted upstairs by William Malloy, Leonard Malloy, Ed Lahey, W. J. Miller and Philip Erickson.
23. There was evidence to support the contentions of the plaintiff, and while it is also true that the defendants offered evidence which contradicts the evidence offered by the plaintiff it is not our province to attempt to ascertain whether Malloy was in truth working for *348himself or whether he was hurt working for the company at the time he was hurt, because it was the exclusive province of ttíe jury to determine that question of fact and our only inquiry now is whether the record contains evidence entitling the plaintiff to go to the jury for a decision of a controverted fact. The plaintiff contends that he was to receive free wood as a part of his compensation. It was for the jury to say whether such was the agreement. There was direct evidence tending to show that such was the agreement, and in addition to this direct evidence there was the significant circumstance of wood being piled against the apartments when Malloy moved to the new barn. The plaintiff insists that the alleged agreement concerning free wood was recognized by the company during the entire five year period of Malloy’s employment. It was for the jury to say whether hauling wood from the warehouse to the barn by teamsters pursuant to the orders given by Harvey and by Camp constituted recognition of such agreement. The plaintiff contended that he was elevating the wood to the second floor in obedience to orders given by Camp. The conversation attributed by the plaintiff to Camp relative to the removal of the wood from the auto shed was, if believed by the jury, evidence tending to show that Camp ordered the wood taken upstairs. There was evidence from which a jury could conclude that Malloy was to receive as a part of his compensation free wood to be hauled from the warehouse to the barn, that the defendant company recognized such an agreement by causing wood to be hauled from the warehouse to the barn by the company’s teamsters and during working Hours, and by Harvey, the shipping clerk, and by Camp, the superintendent, each ordering teamsters not only to haul wood to the barn, but to take it up into the loft; that two or three weeks prior to the accident the *349plaintiff received express orders to haul wood from the warehouse to the barn; that the wood which was piled in the automobile shed was placed there pursuant to orders given by Harvey; that Camp ordered all the wood which had been piled in the auto shed to be moved, and that Thomas Malloy at the time he was hurt was engaged in carrying out such express order given by Camp; and that the company even recognized an obligation to furnish the teamsters with wood for the reason that on one occasion two sacks of coal were sent to the barn for the use of the teamsters.
If the jury believed the testimony offered in behalf of the plaintiff, then the conclusion is inevitable that most if not all the wood lying in or near the auto shed on September 11,1915, had been hauled from the warehouse and dumped in the barn pursuant to direct orders given by Harvey and Camp. All that wood, with the possible exception of the three or four loads hauled by the plaintiff, was hauled during working hours by persons acting as employees of the company and at the sole expense of the company. There was. much evidence from which the jury could conclude that the company retained its ownership in the wood. The teamsters were at liberty at all times to use from the wood whether lying on the first floor or piled on the second floor. It was for the jury to say whether the wood belonged to the company, or whether it became the property of the plaintiff when he placed it in the boxes to be hoisted upstairs. It was for the jury to decide, too, whether the plaintiff when hoisting the wood was handling Malloy’s wood for Malloy’s use or whether he was handling the company’s wood for the use of the company’s employee or employees. Wood had never been deposited at any place on the first floor except at the foot of the stairway and in *350or near the anto shed. The place at the stairway had been cleaned np pursuant to Camp’s orders, and when he ordered the wood to be taken out of the auto shed it is fair to conclude that he intended that the wood should be taken to the only other place used for storing wood — upstairs; and, indeed, Malloy told Camp that he would take it upstairs. After reading and rereading the record presented to us and giving to it our most careful consideration, it is our conclusion that the plaintiff was entitled to have the jury determine whether he was engaged in a work for the company when he fell through the hatch and was injured. The court told the jury to find for the defendants if the plaintiff was doing his own work. The instructions were plain and understandable and the jury could not have been misled; and consequently the verdict of the jury is conclusive evidence that the jury found that the plaintiff was doing work for the company at the time of his injury. The instructions of the court presented the respective theories of the litigants. The court gave no instruction which can be said to be prejudicial to the company, and every instruction which the company requested and to which it was entitled was given by the court.
The verdict and judgment were against Camp, the superintendent, as well as against the Marshall-Wells Hardware Company, the employer. Camp admitted that he was a superintendent, and moreover there was ample evidence from which the jury could find that Camp had charge of all the work done in the bam; that he caused the hatch to be enlarged and the block and tackle to be installed so that articles could be hoisted to the second floor; and that he had actual knowledge that the hatch and blocks and tackle were use'd for the purposes for which they were intended. *351The plaintiff contends that since Camp was the superintendent in charge of the work at the barn, the Employers’ Liability Act applies to Camp with the same force and to the same extent as it does to the Marshall-Wells Hardware Company.
24. The Employers’ Liability Act presents itself in two aspects, for it imposes two kinds of liability: the one civil, and the other criminal. Section 3 makes it the duty of foremen as well as other persons having charge of the particular work to see that the requirements of the statute are complied with, and a failure may be punished by a fine or imprisonment or both. Viewed in its criminal aspect the Employers ’ Liability Act is plainly intended to make a foreman or person having charge of the particular work criminally liable for failure to see that the requirements of the statute are complied with; and to this extent, at least, the act has extended the liability of a foreman.
It is possible, although it is not necessary to decide, that the civil aspect of the statute in turn presents itself in two phases: one where the statute applies with all its incidents and one where it does not. The Employers’ Liability Act defines the duties which shall be performed in certain kinds of work, and for convenience we may treat these defined duties as the principal element of the statute and all else as incidents; and while it may be assumed that the statute imposes upon a foreman as well as upon the owner the obligation of performing those specified duties, nevertheless it must be remembered that our present inquiry is whether, aside from the specified duties imposed by the enactment, all or any of the incidents which characterize the statute are applicable to a mere foreman. If death results from a violation of the Employers’ Liability Act certain named persons sue as individuals *352and not as representatives of the estate of the deceased, and the right of action is without limit as to the amount of damages; but if the action is not brought under this statute it is prosecuted by a representative of the estate and there is a limit to the amount of damages which may be recovered: Section 380, L. O. L. If an action is governed by the Employers’ Liability Act there are certain defenses, including contributory negligence, which cannot be pleaded by the defendant as a bar; but if an action is not governed by this statute, those certain defenses, including contributory negligence, are available as a.bar to the action. When we say that an action for damages is completely within the embrace of the Employers’ Liability Act we must be understood to mean that the action is one which is properly prosecuted by the person who was injured, or, in case of his death, by an individual belonging to one of the classes of persons specified by the statute, against a proper party defendant who is prohibited from pleading contributory negligence, and certain other defenses, as a bar. We have recently held that one who is a mere member of the public, as distinguished from a person who is an employee or engaged in work on or about a wire charged with a dangerous voltage of electricity, does not come within the.complete embrace of the Employers’Liability Act, and that therefore the widow of a mere member of the public who has been killed by coming in contact with an electric wire cannot recover damages from the owner of the wire; but the remedy is an action by a representative of the estate of the deceased: Turnidge v. Thompson, 89 Or. 637 (175 Pac. 281). There may be persons, as possibly a member of the public, who cannot as a party plaintiff sue an owner under the Employers’ Liability Act, even though such owner may owe to the *353person suing one or more of the duties prescribed by such act; and although that person as such member of the public may not come within the complete embrace of the statute and cannot sue under the act, it is possible that it may nevertheless be true that such person can sue and allege negligence, and, as was done in Peterson v. Standard Oil Co., 55 Or. 511 (106 Pac. 337, Ann. Cas. 1912A, 625), prove the alleged'negligence by showing the violation of a duty, imposed by the Employers’ Liability Act as a statute enacted for the protection of the public, and upon such proof of negligence be entitled to recover, unless guilty of contributory negligence. Even though an action against a foreman does not come within the complete embrace of the Employers’ Liability Act, it is possible that it may nevertheless be true that the foreman may be sued for negligence, and such negligence be proved by showing a failure to perform a duty imposed upon the foreman by the Employers’ Liability Act and a recovery had in the absence of contributory negligence, on the theory that the violation of the statute is negligence per se under the doctrine announced in Peterson v. Standard Oil Company, supra. The civil aspect of the Employers’ Liability Act then may possibly present itself in two phases: ’ One where the statute is available only for the purpose of fixing the duty of the party sued, and none of the incidents of the statute attend an action for damages; and the other, where both the plaintiff and the defendant are completely within the embrace of the statute so that both the principal element and also the incidents are applicable to an action for a violation of the enactment.
25-27. The trial court charged the jury that if the plaintiff was injured while engaged in work for the Marshall-Wells Hardware Company, and if his injury *354was caused by a failure of the company to comply with one or more requirements of the Employers ’ Liability Act as charged in the complaint, then this statute completely embraced not only the company but also Camp, the superintendent; and hence the concrete question for decision is whether the Employers’ Liability Act completely embraces a foreman or superintendent so that the statute, with all its incidents, is applicable in an action for damages against the foreman or superintendent. By its' express terms the act has abolished the defense of contributory negligence. Section 6 reads as follows:
“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 damage.”
In Schaedler v. Columbia Contract Company, 67 Or. 412 (135 Pac. 536), it. was held that Section 6 just quoted does not apply to all actions for personal injuries, but that it only applies to actions brought under the Employers ’ Liability Act. In other words, what is said in Section 6 is only one way of saying that in any action brought under this statute the contributory negligence of the person injured shall not be a defense; or, to say the same thing in another way, contributory negligence is not available as a defense against any action for damages brought under this statute. The act is entitled, “A bill to propose by initiative petition a law” which among other things declares “what shall not be a defense in actions by employees against employers.” The title of the act is a part of the statute and can be looked to for the purpose of ascertaining the meaning of the statute; and, moreover, an act adopted by the people in the exercise of the initiative as well as an act passed by the legislative assembly must comply with the requirements of Article IV, *355Section 20, of the State Constitution: Turnidge v. Thompson, supra. The foreman or superintendent is not an employer; indeed, by the express terms of the statute itself the foreman or superintendent “shall be held to be the agent of the employer in all suits for damages for death or injury suffered by an employee.” The defense of contributory negligence is only withdrawn from the employer. Even though a foreman may become criminally liable by force of the terms of the Employers ’ Liability Act and even though it may be possible, but it is not decided, that the failure of a foreman to perform a duty imposed by the act is negligence per se within the doctrine of Peterson v. Standard Oil Co., 55 Or. 511 (106 Pac. 337, Ann. Cas. 1912A, 625), nevertheless it is obvious that the defense of contributory negligence is not withdrawn from a foreman or superintendent who is not the employer but by the express provisions of the statute is declared to be an agent of the employer.
28. It is true that Section 3, which provides for punishment by fine or imprisonment in case of failure to obey the mandate of the statute, declares that such punishment “shall not affect or lessen the civil liability of- such persons as the case may be.” It is manifest, however, that the excerpt quoted from .Section 3 neither enlarges nor lessens “the civil liability of such persons,” but this language is evidently inserted in the section merely for the purpose of removing even the possibility of claiming that punishment by fine or imprisonment shall relieve the person fined or imprisoned from liability for damages. The language quoted from Section 3 simply leaves the subject of civil liability at large; and, moreover, the words, ‘ ‘ as the case may be,” are themselves significant when con*356sidered in connection with the different classes of persons named in the action.
A careful examination of the Employers’ Liability Act, together with its title, makes it obvious that the act does not completely embrace an action for damages against a foreman or superintendent like Camp; and consequently it becomes necessary fo reverse the judgment as against Camp. As against the Marshall-Wells Hardware Company the judgment is affirmed; but as against Camp the judgment is reversed.
Reversed in Part and Aeeirmed in Part. ■