dissenting.
The majority opinion in this case, it seems to me, misconstrues the Employers’ Liability Law and thus *562places a duty upon this defendant not contemplated by this enactment.
The facts in this case disclose that the defendant was not in any manner in charge of the loading of the trucks, and that the loading of the trucks and the manner in which it was done was entirely under the control of the Elk Creek Logging Company. Whether the trucks were to be loaded in the manner in which they were loaded or in some other manner and by devices that did not require plaintiff to be upon the truck were matters that rested within the discretion of the Elk Creek Logging Company. But the majority would read into the Employers’ Liability Law a duty upon the owner and operator of the truck to provide a safe place for the plaintiff to jump in case the Logging Company’s method of loading the truck developed trouble. I can find no language in the Employers’ Liability Law, nor any prior interpretation of the Act, which would justify such a conclusion.
In my opinion, the use of workmen’s compensation cases to define “persons having charge of, or responsible for, any work,” as those words are used in the Employers’ Liability Law, cannot in any way be used for analogy. The Employers’ Liability Law is governed by tort law and implies a duty which, if not performed, creates a liability. Whereas, the rights of an injured employe under the Workmen’s Compensation Act arises out of contract, West et al. v. Kozer, 104 Or 94, 206 P 542, and under the contract an injured employe is denied the right of action against a covered third party if there is a commingling of employes of different employers upon premises said to be under the employers’ joint supervision and control.
Certainly, in interpreting the contract between the employer and the injured employe as created by the *563Workmen’s Compensation Act it becomes quite clear that the contract applies whether one employer has authority to direct the actions of another covered employer or not, McGuire v. Brown, 217 Or 300, 310, 342 P2d 774, or whether “only one of the covered employers may be said to be in actual control of the site where the work is under way.” Pruett v. Lininger, 224 Or 614, 356 P2d 547, 551. Constructive control is all that is required, i.e., “* * * All that is essential is that they occupy the same premises and perform component parts of a general undertaking.” Inwall v. Transpacific Lumber Co., 165 Or 560, 571, 108 P2d 522, approved in Hensler v. City of Portland, 212 Or 28, 34, 318 P2d 313.
In the case before us, however, we are concerned with the specific duties an employer owes to the employe of another within the terms of the Employers’ Liability Law. The majority state “The Act cannot apply unless in some sense the defendant has ‘charge of’ or is ‘responsible for’ the work out of which the injury arose. The defendant must participate in the enterprise in some way. The difficult problem is to determine what is meant by ‘participation.’ ”
It seems to me that the use of the word “participation,” which is general in its meaning, is, as used by the majority, a misnomer and tortures the plain, specific language of the statute. The participation which creates the duty and thus the liability is pointed out specifically therein and that is in being in “charge of” or “responsible for” the work being carried on.
It is hornbook law that an employer has a duty to provide employes with a safe working place and safe tools and appliances and that this duty cannot be avoided or delegated. Celorie v. Roberts Bros., Inc., 202 Or 671, 681, 276 P2d 416; Warner v. Synnes et al., *564114 Or 451, 230 P 362, 235 P 305, 44 ALR 904. This duty is not shifted from the primary employer to another who comes upon the premises as an independent contractor to aid the employer in carrying on his business. Wychgel v. States Steamship Co., 135 Or 475, 296 P 863; Hicks v. Peninsula Lumber Co., 109 Or 305, 220 P 133.
Under the Employers’ Liability Law an employer owes to his own employe the duty of providing not only a safe place to work, but also the duty to provide him with safe tools and other protective measures. ORS 654.305, ORS 654.310. Again the duty to see that this is done falls upon those “having charge of the particular work.” OES 654.315.
ORS 654.305 of the Act again refers to “persons having charge of or responsible for, any work involving risk or danger * * (Italics supplied) This statute which is generally referred to as the “and generally” clause, and upon which plaintiff must ground his right to seek a recovery, reads as follows:
“Generally, all owners, contractors or subcontractors and other persons having charge of, or responsible for, any work involving risk or danger to the employes 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.”
The statement “having charge of, or responsible for,” is restrictive in meaning. It certainly does not go so far as to include one who as an owner or contractor is interested only in the end result of the work for which another is responsible. This is clearly *565pointed ont in the case of Warner v. Synnes et al., supra, which is not mentioned in the majority opinion. In that case an employe of an independent contractor was injured by using a defective rope furnished by the owner. He sought, therefore, to hold the owner liable under the terms of the Employers’ Liability Law. The complaint alleged:
“That defendants and each of them were negligent herein in not furnishing the plaintiff a safe place to work and in requiring and allowing the use of an improper and unsuitable rope in the construction of said scaffold, and in failing to use every device and precaution for the protection of plaintiff * * 114 Or 451, 455.
While “owner” is mentioned with equal force with other persons in the Act in denying recovery under the Act, the court said:
“® * * The reason for making the contractor alone responsible and exonerating the owner with whom he contracts is that the owner is not the person in charge of the work. *' * *” (Italics supplied) 114 Or 451, 458.
In the court’s opinion on rehearing, the court stated:
“* * * It was part of the contract between Synnes, the contractor, and the company that the latter should furnish to Synnes and not to any of his employees the material necessary to be used. It was the duly of Synnes and not of the company to inspect this material and to see that it was proper and safe to be used. It was Synnes and not the company that could not delegate this duty to another. It is hornbook learning that the master is charged with the nondelegable duty of providing for his employees a safe place and safe appliances with which to work. * * *” 114 Or 451, 462.
The court then went on and distinguished the cases of Clayton v. Enterprise Electric Co., 82 Or 149, 161 P *566411, Turnidge v. Thompson, 89 Or 637, 175 P 281, Rorvik v. North Pac. Lumber Co., 99 Or 58, 190 P 331, and stated:
“In all those eases the instrumentality of the defendant company which caused the injury was in active operation and directly affected the plaintiff * * 114 Or 451, 463.
Prom all this the court stated in that case and as shown in the following cases cited, the rule is that for an independent contractor to be held liable under the terms of the Act he must have the authority to direct the manner in which the work is being carried out, and becomes liable to the employe of another only when some instrumentality he is using sets in motion factors which result in an injury to that third person.
Mr. Justice McBride, is speaking on the Employers’ Liability Act, said: “The plain intent of the law is to give the injured employee a remedy against his employer.” Lawton v. Morgan, Fliedner & Boyce, 66 Or 292, 300, 131 P 314, 134 P 1037. This was and is the primary purpose of the act and has been adhered to by this court, with the following exceptions as stated by Mr. Justice Sloan in Byers et al v. Hardy et al., 216 Or 42, 48, 337 P2d 806, and cited with approval in Fisher v. Kirk, 1008, 219 Or 402, 347 P2d 851:
“The Employers’ Liability Act makes no provision for a so-called third party action similar to that found in the Workmen’s Compensation Act. It is only the reference of risk and danger to ‘the public’ (ORS 654.305) which permits such an action to be brought at all. This court has consistently held that it is not every member of the public that is thus protected. It is only those whose employment or duties require them to be about machinery of an employer other than his own or whose duties *567may require such person to expose himself in or about hazardous conditions or structures of such other employer which are prohibited or circumscribed by the Act. It must be a hazard or risk which the employer has created or permits to exist and which is within the control of the employer sought to be held. There must likewise be a commingling of function or duty of the injured person and the employes of the employer. In other words, the acts or omission of the employer which give rise to a cause of action in behalf of an injured member of the public requires active and direct participation on the part of the employer. Turnidge v. Thompson, 89 Or 637, 175 P 281; Rorvik v. North Pac. Lumber Co., 99 Or 58, 190 P 331, 195 P 163; Drefs v. Holman Transfer Co., 130 Or 452, 280 P 505; Myers v. Staub, 201 Or 663, 272 P2d 203.” (Italics supplied)
It is quite apparent, if we assume the defendant was an independent contractor, that there was a “commingling of function or duty of the injured person” as an employe of the Elk Creek Logging Co., and the employes of the defendant. However, this commingling of employes by reason of the employers’ contract, in my opinion, does not create a liability under the act insofar as the defendant is concerned.
The hauling of the logs by defendant was only a part of the over-all operation of the Elk Creek Logging Company. Therefore, it is necessary for the plaintiff to go further and show a violation of a duty toward the plaintiff as required by the act to be performed by the independent contractor. This duty has been spelled out by this court in Turnidge v. Thompson, supra, which opinion was analyzed in Rorvik v. North Pac. Lumber Co., supra, 99 Or 58, 70, and stated as follows:
“* * * Prom the lucid interpretation in that *568case [Turnidge v. Thompson] and in other cases hereafter mentioned, we deduce the rule that the Employers’ Liability Act does not extend to the protection of the general public as such, but that it does extend its protection to employees of the particular person owning or operating dangerous machinery or engaged in hazardous employments, and to other persons or employees of other corporations whose lawful duties require them to be or work about such machinery, or expose themselves to the hazards of the machinery or appliances in use by the owner thereof.” (Italics supplied)
All of the cases involving an action against an independent contractor contain this same language or language of similar import. In an analysis of our cases, where the act has been interpreted to grant a cause of action to the employe of another, it has always been held that the machinery of the defendant was defective and, because defective, was the active cause of the injury. This is disclosed in the following cases where the act was interpreted to grant a cause of action to the employe of another which arises by reason of the reference in the act to risk or danger to the public.
In Clayton v. Enterprise Electric Co., 82 Or 149, 161 P 411, the third party was held liable to the employe of another because the instrumentality operated and under the control of the defendant was not so guarded that when the employe came in contact with this instrumentality (electricity) the instrumentality caused his injury.
In Rorvik v. North Pac. Lumber Co., supra, the defendant’s cars, operating on rails, were not equipped with brakes so they could be held under control and on getting out of control caused the death of another’s workman.
*569In McKay v. Pacific Bldg. Materials Co., 156 Or 578, 68 P2d 127, the defendants, who were delivering cement to a contractor, used a defective safety chain on the tank holding the concrete so that when the defendant attempted to empty the tank by tipping it the chain broke and the tank fell upon the plaintiff.
In Coomer v. Supple Investment Co., 128 Or 224, 274 P 302, the defendant left nails protruding in a structure so that they caught a chain and caused injury to the employe of another.
It, therefore, seems to me that the act requires of one, who is prosecuting work at or near or in conjunction with another, to safeguard his equipment so as to not cause injury to the employes of the other contractor. But when another has safeguarded his equipment, so that the equipment itself is not the activating cause of an injury to the employe of another, he has met the requirements of the act.
Stated in another way, one is not required to use every device, care and precaution for the safety of the employes of another unless the failure in this respect permits machinery and equipment under his control to actively and not passively cause injury.
To hold otherwise, it seems to me, would extend the act far beyond any proper interpretation. For instance, if we assume a state of facts which show that in this case the defendant is an independent contractor furnishing trucks for the loading of logs, and an employe of the Elk Creek Logging Company is required to stand by the truck to assist in guiding the logs so that they will be lowered in a proper position upon the truck; that during this operation the employe is compelled to jump toward the truck, because a log has slipped, and his head strikes the side of the truck injuring him; that it is further shown it is practical to *570place protective material along the side of the truck, without interfering with the truck’s operation, that would prevent such an injury. Under the interpretation of the act placed thereon by the majority, such injured workman of another would be within the protection of the act.
I would affirm the judgment of the trial court.
Justices Kossman and Warner concur in this dissent.