specially concurring.
I think it is unnecessary in this case to discuss *368the liability under ORS 654.071 of a prime contractor for the errors or omissions of its subcontractor. In the case at bar there was evidence that Stadeli Pump and Construction, Inc., controlled the work in question and that its employes worked in unshored trenches in violation of relevant safety code provisions. The only evidence to the contrary was testimony from an official of Stadeli that it had subcontracted out the work in question. The hearing examiner, after receiving such evidence, stated that he was not going to consider this testimony for the reason that “I think any evidence as to the subcontractor * * * would best be provided by that instrument, which was not offered here.” No attempt was thereafter made to offer a written contract or to prove that the contract was oral. All that Stadeli did was recall one of its witnesses, who testified as follows:
“Q Was it part of your project to * * * install that trench?
“A No, sir.
“Q Whose was it?
“A Marvin Ferris.”
Furthermore, in his opinion and order the hearing officer made the following statement, which is supported by evidence in the record:
“Even if this oral evidence [re the alleged subcontract] was not objectionable, however, we were not persuaded that Stadeli Pump was not just as fully responsible for these trenches as all the other ones. The 8-inch-pipe trenches were among those identified by Marvin Stadeli as being part of Stadeli Pump’s work when he accompanied Yearrier [the inspector] on the inspection. Apparently, no mention was made of any subcontract at that time.”