Concurring in Part With Mr. Justice Harris.- — The motion for a new trial was based upon the grounds, (1) insufficiency of the evidence to justify the verdict, and that the same is against law, (2) errors in law occurring at the trial and excepted to by the defendant. Defendant claimed that this was not an action that came under the Employers’ Liability Act. The trial court granted a new trial for the reason that the complaint was insufficient to justify submission of the case to the jury under the Employers’ Liability Act, and that the instructions *551relating to the Employers’ Liability Act were therefore errors.
The complaint shows that the plaintiff was employed by defendant to assist in loading empty barrels in a boxcar, and while so engaged he was injured by a barrel which fell upon his left hand. The negligence of defendant is set forth as follows:
“That the injury to plaintiff was caused by the carelessness, recklessness and — or negligence of defendant in requiring plaintiff to place said barrels in said boxcar, one barrel upon another, and to stack said barrels up as high as the roof of said car would permit, and in not using every device, care and precaution which it is practicable to use for the safety and protection of life and limb of defendant’s employees, as required by law, in that defendant did not have sufficient employees engaged in said work, and directed that said work be done in such manner that it was possible for barrels to roll down from the top of the pile and to fall upon the person engaged in said work, and directed said work to be done in such manner as to be dangerous to those employed therein. That defendant well knew of the danger involved in loading said barrels in said car at that time in the manner in which he required said work to be done, and failed to take proper and necessary precautions to prevent such accidents.”
A demurrer was interposed to the complaint, which was overruled. Plaintiff also moved the court to require plaintiff to make the part of the complaint-above quoted more definite and certain, and set out wherein the defendant did not use every device, care and precaution which it is practicable to use for the safety and protection of defendant’s employees. Upon the motion being overruled, defendant answered, denying the negligence and affirmatively alleging as follows:
*552. “That plaintiff was injured through his own fault in not obeying the directions of the man in charge of the work, and that plaintiff so placed the barrels that one rolled on him and struck his hand or fingers, and that said barrel would not have fallen had plaintiff followed the directions as to the manner in which said barrel should be placed in said car; that the injury was due wholly and entirely to the negligence of the plaintiff and without any fault on the part of the defendant or his employees.”
The answer further alleges that the work was not in any respect dangerous; that plaintiff assumed the risk and that he was injured by reason of his own carelessness and negligence. Defendant’s first requested instruction reads thus:
“This is an action to recover damages for negligence charged by the plaintiff against the defendant, and as there was no machinery nor any appliance used in the work that was carried on, I charge you that unless you find, from the evidence, that the employment was a dangerous one and that the defendant directed the work to be done in such a manner as to make it dangerous to the persons engaged in the work, that this action does not come within the Employers’ Liability Act, and your verdict must be for the defendant.”
Defendant also requested the court to charge the jury that if they found the work in which plaintiff was engaged was dangerous, but that no absolute duty to furnish any device or other equipment was incumbent upon the defendant and that plaintiff knew the risk and danger in the work itself, he assumed the risk and the verdict should be for the defendant.
The testimony tended to show that at the time of the injury plaintiff was engaged in loading old empty barrels in a boxcar. Some of the barrels had con*553tained oil or grease and were slippery. The work was done at night. The light from two or three lanterns was poor. The barrels were stacked on end three high and then the fourth barrel was crowded in on its side between the tier and the roof of the car. Mr. John P. Schuster was in charge of the work for the defendant, and assisted plaintiff to place the fourth barrel on top of the three tiers. As described in the testimony, the upper barrel being larger in the middle than at the ends, it could not be pushed in between the three barrels and the roof of the car, but projected out over where the next tier of barrels was to be piled, leaving the barrel which fell with no support except as it was wedged in between the tier of barrels and the roof of the car. Mr. Schuster testified that after they put the fourth barrel up he said to Bottig, “That barrel will have to be taken down, that may come down, safety first.” He also testified that, “He [Bottig] took hold of the barrel, and jammed it right up under the roof.” Mr. Schuster further stated on cross-examination, in referring to the manner in which the barrel which fell was piled:
“Well, what I told him to do, take it out, but he shoved it under the roof, and I put my hand on it, and, by gosh, it was solid.
“Q. So after you got it there and you tested it and tried it you thought it was all right.
“A. Tes, I thought it was all right.”
It appears that in piling other barrels the top one was jarred loose and fell on plaintiff’s hand. The testimony tended to show that if one man had held the barrel up while the other tier was placed underneath so as to support it, or if the second tier of barrels had been piled three high before the fourth barrel was placed, the barrel would not have fallen. The *554testimony indicated that the men sometimes piled the second tier before they put the fourth barrel on top. There is some dispute between the plaintiff and Mr. Schuster as to the instructions given by the foreman to plaintiff. Plaintiff claims, in substance, that the foreman g’ave him no warning or instructions. Mr. Schuster testified to the effect that he warned the plaintiff not to hit the barrels which were under the fourth one as there was danger of its falling.
The action was brought under the Employers’ Liability Act, and the court charged the jury under the provisions of that act. The first question for consideration is as to the sufficiency of the complaint. The specifications of negligence in the complaint are somewhat general, and we think could have been made more definite and certain. The complaint charges that the defendant directed the work to be done in such manner that it was possible for the barrel to roll down from the top of the pile upon the person engaged in the work, so as to be dangerous. Tersely stated, it alleges that the barrel was suspended at the top of the car without any support. This is in addition to other general allegations of negligence showing a want of care and precaution, and a failure to use every device which it is practicable to use for the safety and protection of life and limb of defendant’s employees.
6. Where a defendant answers, after the overruling of his demurrer to the complaint, the complaint is to be construed most strictly in favor of the pleader, and will be sustained where the complaint contains a defective statement of a cause of action, but not where it fails to state a cause of action: Shultz v. Shively, 72 Or. 450, 453 (143 Pac. 1115); West v. *555Eley, 39 Or. 461 (65 Pac. 798); Olds v. Gary, 13 Or. 362 (10 Pac. 789); Oregon & C. R. R. Co. v. Jackson Co., 38 Or. 589, 597 (64 Pac. 307, 65 Pac. 369).
7. The defendant, by filing an answer and denying the gist of the allegations of the complaint, and affirmatively alleging contributory negligence and assumption of risk, waived his demurrer to the complaint. Defendant avers in effect that there was negligence in the conduct of the work in which plaintiff was engaged, but that it was through plaintiff’s fault in not obeying directions of the one in charge in placing the barrel that rolled on to him. This leaves the disputed question as to whether or not plaintiff did the work under orders to which the plaintiff was bound to conform and did conform, and whether by reason of his having conformed to such orders the injury resulted.
8. Failure in an action for negligence to allege any specific negligent act done, or duty omitted is, in any event, a mere defective statement of a cause of action, and is waived by answering over, and cured by verdict: Chan Sing v. City of Portland, 37 Or. 68 (60 Pac. 718). A different test is applied to complaint after verdict than on a motion or demurrer. In Minter v. Minter, 80 Or. 369, 372 (157 Pac. 157), Mr. Justice Burnett states the rule thus:
“It is contended here that the allegations of the complaint are not sufficient to show a partnership. A general demurrer seems to have been filed against the complaint, but without the same having been argued to the court the defendant answered, so that the case now stands and is to be determined as upon the sufficiency of a pleading after verdict. It is said in Bates v. Babcock, 95 Cal. 479, 482 (30 Pac. 605, 29 Am. St. Rep. 133, 136, 16 L. R. A. 745, 748):
*556“ ‘Objections to a complaint which should be pointed out by special demurrer, such as uncertainty or ambiguity, are insufficient, unless so specified, to defeat a verdict against the defendant, nor can they, if overruled after having been so specified, be considered for the purpose of sustaining a judgment in his favor that was erroneously rendered after a trial upon the merits. It is only when there is in the complaint an entire absence of averment of fact essential to a recovery, so that no evidence of that fact could be received at the trial, that a judgment in favor of the plaintiff cannot be sustained; but, if the objection be merely that such fact is defectively alleged, evidence received under such averment, if sufficient, will sustain the judgment.’ ”
We think the complaint is a defective or general statement of a good cause of action, and that it is good after verdict.
9. It is contended by the defendant that the complaint does not show that any device could have been practically used. The averment that the defendant was negligent “in not using every device, care and precaution which it is practicable to use for the safety and protection of life and limb,” clearly implies that it was practicable to pile the barrels so that the upper one would not fall down. The Employers’ Liability Act is analogous to the Factory Act, Section 6738, Or. L. In several jurisdictions, under the provisions of a Factory Act, the burden is on the defendant to show that it was not practicable to use a particular device or guard reasonably calculated to prevent accident : Reddington v. Blue & Raftery, 168 Iowa, 34, 40 (149 N. W. 933); O’Connell v. Smith, 141 Iowa, 1 (118 N. W. 266); Kimmerle v. Dubuque, 154 Iowa, 42 (134 N. W. 434); Caspar v. Lewin, 82 Kan. 604 (109 Pac. 657, 40 L. R. A. (N. S.) 526); Gross v. Eagle *557Wheel Mfg. Co., 252 Pa. 361 (97 Atl. 457); Camenzind v. Freeland Furniture Co., 89 Or. 158, 171 (174 Pac. 139).
10. The rule in this state is understood to he that the burden is upon the plaintiff to show the practicability of using such a device: Cameron v. Pacific Lime & Gypsum Co., 73 Or. 510, 517 (144 Pac. 446, Ann. Cas. 1916E, 769). A strict rule as to the allegations and proof as to the practicability of performing work with care and precaution, or by the use of a certain device, should not be invoked. An employer is in a better position to show the impracticability of the use of a certain device than the employee is to prove the practicability. Moreover, there can be but little question in regard to the practicability of using care and precaution as commanded by the Employers’ Liability Law. In Quinn v. Hawley Pulp & Paper Co., 85 Or. 630, 635 (167 Pac. 571), which in principle was much like the case at bar, it was shown on the part of defendant that the material was piled in the usual way. Mr. Justice Burnett stated, “That the bales were stacked up in the usual way does not controvert the showing of the plaintiff. If that was the habitual method of storing the paper, the wonder is that someone was not hurt before the injury in question. If the process used was such as in fact to cause hurt to the employee, when it was practicable to obviate the danger, its long continuance does not make it less culpable.” In the present case the defendant claims that the barrels were piled in the usual manner. It is in evidence, however, that by actual experience the second tier of barrels could be piled three high before the fourth barrel was placed on top.
*558The testimony indicated that the foreman took hold of the barrel with the plaintiff, and assisted him in placing it, saying, “Yon will have to pnt it up there.” The Employers’ Liability Act, among other things, enjoins upon all owners or persons having charge of, or responsible for, any work involving a risk or danger to the employees, to use every device, care and precaution which it is practicable to use for the protection and safety of life and limb. It will be noticed from this clause that “care and precaution” are commanded by the law equally as strong as the use of a device. "We see no reason why the one is not just as essential as the other. It is true that the use of a device may include care and precaution, while care or precaution may or may not include the use of a device. In the present case there was no device such as is usually used to guard dangerous machinery, and the question in regard to a device is not involved, unless we term the third barrel which might have been placed under the barrel which fell a device. That there was a want of care and precaution in the conduct of the work is alleged, and the testimony was adduced supporting such allegation. In fact the testimony of the foreman himself showed that there was negligence in placing and allowing the barrel to remain in the precarious condition. He directed it to be put up and neglected to take it down. He neglected to put up the second tier of barrels before attempting to lay the fourth barrel on top of the tier. The testimony shows that the plaintiff, pursuant to his duty, by virtue of his employment by defendant, performed the work in conformity to the orders of Mr. Schuster, who had charge of the work. The defendant was responsible for the manner in *559which the work was done under the direction of his foreman, and is not entitled to the defense of assumption of risk, according to the provisions of Section 5 of the Employers’ Liability Act (Section 6789, Or. L.).
It is urged by counsel for defendant that the work did not involve a risk or danger to employees. This question is one of fact to be determined by the jury rather than a question of law: Mackay v. Port of Toledo, 77 Or. 611 (152 Pac. 250); Paullos v. Grove, 84 Or. 106 (164 Pac. 562). Prom the testimony adduced the jury could reasonably believe that the work was dangerous.
The want of care and precaution upon the part of the defendant, as averred in the complaint and as shown by the testimony, was much the same in principle as in the cases of Quinn v. Hawley Pulp & Paper Co., supra; Reed v. Western Union, 70 Or. 273 (141 Pac. 161), where a bucket of paint fell upon the plaintiff; and Adams v. Albina Eng. & Machine Works, 97 Or. 543 (192 Pac. 793), where a pile of angle irons fell upon the plaintiff. Therefore there was no error in overruling the motion for a nonsuit, and refusing to direct a verdict for defendant.
12. The action was brought, as the complaint indicates, under the Employers’ Liability Act. If the complaint should be amended so as to make it more specific, the same testimony could be introduced. The defendant apparently understood the allegations of the complaint, and was in no way surprised upon the trial. The court plainly and carefully charged the jury under the provisions of the Employers ’ Liability Act. Among other things the jury was told that they must first find by a preponderance of the *560evidence that the service in which the plaintiff was engaged at the time of the injury involved a risk and danger to plaintiff and other employees, practically as requested by defendant. The court instructed the jury in regard to common-law liability. Such charge, however, was favorable to the defendant, and gave him the benefit of the full defense of contributory negligence and the defense of assumption of risk. The complaint states a cause of action, and that the testimony substantiates the complaint. It was therefore error for the trial court to set aside the verdict and judgment.
The judgment of the Circuit Court should be reversed, and the cause remanded with directions to enter judgment upon the verdict.