Ferretti v. Southern Pacific Co. , 154 Or. 97 ( 1936 )

IN BANC. Action by Manuel Ferretti against the Southern Pacific Company and another. From an order setting aside a judgment for plaintiff and allowing a new trial, plaintiff appeals.

AFFIRMED. REHEARING DENIED. This is a personal injury action. The cause was submitted to the jury solely under the provisions of the Oregon Employers' Liability Act, in accordance with the theory of plaintiff, and a verdict was rendered against both defendants in the sum of $15,000. On motions of the defendants, the trial court set aside the judgment and ordered a new trial for the following reasons: (1) Error committed in denying the motions of the defendants for nonsuit and a directed verdict, based on the contention that the Employers' Liability Act had no application to the facts in the case and that there was no evidence of negligence. (2) Error committed in entering judgment against the defendant Kubler in that, under the Employers' Liability Act "there can be no award of damages against the employee who was alleged to have been in charge of the work involved". From the order setting aside the judgment and allowing a new trial, the plaintiff appeals.

A statement of the facts in the light most favorable to plaintiff is in order to determine whether the cause should have been submitted to the jury. Plaintiff, who is 55 years of age, had been in the employ of the Southern Pacific Company for about ten years as a boiler maker helper. It was his business to assist in the repair of locomotive boilers. A compressed air gun, weighing approximately 50 pounds, was often used in such work. In riveting stay-bolts the boiler maker would operate the gun and the plaintiff would hold a 12- or 15-pound sledge hammer against the bolt while the hammering on it was being done. In other kinds of work the plaintiff would hold this heavy air gun above his head while the boiler maker controlled its operations. It was, indeed, hard manual labor and, according to the evidence offered on behalf of the plaintiff, the operation of this machine resulted in severe vibration and shock to the employee who was obliged to hold it in proper position.

On January 27, 1932, the plaintiff, while in the employ of the defendant company, fell from a locomotive upon which he was working and sustained a fracture of the radius of his right arm. He was under the care and treatment of the Southern Pacific Company's physician, Dr. Berkeley, for about three months. At the end of this period a settlement was had covering the injuries sustained in this accident and the plaintiff returned to work in April, 1932. No controversy is here involved concerning the validity of such settlement. Plaintiff testified that just before returning to work Dr. Berkeley told him that his arm was "perfectly all right to go to work" and that he could do "easy work" or "light work" and that he gave him a "slip" to take to the company's claim agent, Mr. Stewart. Dr. Berkeley denies having had such conversation with the plaintiff, but admits that he gave him a "slip" or hospital certificate — which was introduced in evidence — merely showing that plaintiff "will be able to report for duty on April 19, 1932". There was no statement in the certificate limiting the work to "light work" or "easy work". Plaintiff further testified that he called on Mr. Stewart, the claim agent, signed the release for injuries received in January, received in consideration therefor back wages during time he was laid off, and that thereupon Stewart telephoned to the defendant Kubler, the general foreman of the Brooklyn yard car shops and told him to "give me light work". The claim agent denies giving such directions to the general foreman. Plaintiff thus testified about his conversation with Kubler on the night he went to work:

"A. Well, he told me that he, — ``you can go to work?' I says: ``Yes, sir.' And I says ``what kind of job you give me?' He says: ``The same job, boiler maker helper.' And I says, I says: ``I can't take that job because my arm is so sore, a little sore yet, a little sore yet on account of my muscle; it is kind of tender yet.'

"Q. You mean your muscles were weak? A. Yes, weak. And I says: ``I can't go on that buck-up.' He said: ``You take that jobbecause I don't have nothing else'." [Italics ours.]

Two days later, according to plaintiff's testimony, in response to his statement that the work was too hard for him, Kubler replied, "You stay on that job or quit". Plaintiff worked a week longer and again made complaint to the general foreman but received the same answer, "Stay on the job or quit". Kubler denies such conversation. Plaintiff also testified that he then complained to Louis Roehrig, the foreman of boiler makers, that the work was too hard for him, and that Roehrig said "We don't got nothing else for you to do and you want to stay on that job, all right; if you don't you know what you are going to do quit." However, plaintiff continued to work at such job for about three months before quitting on August 2, 1932. The evidence offered on behalf of the defendants tended to show that plaintiff quit because of a quarrel with Flaherty, the boiler maker under whom he was working. In view of the legal questions involved, all these issues of fact must be resolved in favor of the plaintiff. His testimony must be accepted as true and he is entitled to rely upon every reasonable deduction that may be drawn therefrom.

Plaintiff claims that as a result of being ordered and directed to do this work above mentioned, in his physical condition, his right arm was "badly twisted, displaced, and forced back", and that he is permanently injured. There is some evidence tending to show permanent injury. The evidence offered on behalf of the defendants — especially comparison of radiographs taken after the injury in January with those taken after plaintiff quit in August and prior to trial — indicates that there was no substantial change in the condition of plaintiff's right arm.

The specific charges of negligence against the defendants as alleged in the complaint are as follows:

"(a) That although plaintiff's right arm was in a weakened condition, as defendants well knew, and the latter were instructed to place plaintiff at light work, the defendants carelessly and negligently placed plaintiff at work which was beyond his capacity and which exposed plaintiff to unusual danger and peril by reason of his physical weakness, said work consisting mainly of operating certain heavy air guns and heavy motors in the plant and repair shops of defendant corporation;

"(b) That defendants further, carelessly and negligently placed and caused the plaintiff to continue at work for a considerable period of time which, because of plaintiff's physical weakness, he could not reasonably guard or defend himself against, although the defendants well knew that said work subjected plaintiff to unusual hazards and danger;

"(c) That said defendants, carelessly and negligently, ordered, directed and required plaintiff to perform heavy work although defendants knew and understood the unfitness and incapacity of plaintiff to perform the work demanded;

"(d) That, although the work that plaintiff was required to perform involved a risk or danger to him, the defendant corporation, carelessly and negligently, failed to exercise every device, care and precaution which it was then and there practicable to use, in that, instead of exercising the precaution of giving plaintiff light employment, said defendant corporation, on the contrary, employed plaintiff as above alleged."

The defendants deny generally the allegations of negligence and allege affirmatively the defense of assumption of risk.

No contention is made by counsel for plaintiff that recovery could be had under the common-law rules of negligence. It is clear that plaintiff fully understood and appreciated the risks incident to his employment. He, as well if not better than his employer, knew whether the work in which he was engaged was beyond his physical capacity. See Ehrenberger v. Chicago R.I. P. Ry. Co., 182 Iowa 1339 (166 N.W. 735, 10 A.L.R. 1388);Worlds v. Georgia R. Co., 99 Ga. 283 (25 S.E. 646); Leitner v.Grieb, 104 Mo. App. 173 (77 S.W. 764), and Williams v. KentuckyRiver Power Co., 179 Ky. 577 (200 S.W. 946, 10 A.L.R. 1396), wherein recovery was denied in personal injury actions based upon the alleged negligence of the employer in ordering and directing an employee to do work beyond his known physical capacity. Counsel for plaintiff frankly concede that the sole question presented on this appeal is whether the Employers' Liability Act applies. No attention need be given to cases involving the common-law rules of negligence. The cause of the plaintiff must stand or fall upon the applicability of the above act.

Throughout the years since the Employers' Liability Act was enacted this court has consistently held that, even though it should be liberally construed, it did not apply to every case where an injury occurred through the alleged negligence of the employer, although the title to the act, when considered without regard to the context, is broad enough so to include. The context of the act is more limited in its scope than the title thereof.

Plaintiff does not contend that the instant case comes within the first part of section 1 of the act, but relies upon the following clause, "* * * 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 or devices." Ordinarily, whether a work involves a risk or danger is a question of fact for the jury: Fitzgerald v. Oregon-Washington R. N. Co.,141 Or. 1 (16 P.2d 27). In some cases, however, the court has declared, as a matter of law, that a risk or danger was involved:McCauley v. S.S. Willamette, 109 Or. 131 (215 P. 892). In other cases it has likewise declared, as a matter of law, that the work did not involve risk or danger within the meaning of the act:Hoffman v. Broadway Hazelwood, 139 Or. 519 (10 P.2d 349,11 P.2d 814, 83 A.L.R. 1008). In the broadest sense, every injury involves a risk or danger. Otherwise the injury would not have occurred.

During the first few years that this act came before the court for consideration, it was generally held that the act covered only those cases of employers' liability specifically enumerated therein and that the "and generally" clause amounted only to a reiteration of the preceding provisions of section 1 of the act. See Isaacson v. Beaver Logging Co., 73 Or. 28 (143 P. 938); Schulte v. Pacific Paper Co., 67 Or. 334 (135 P. 527, 136 P. 5); and Schaedler v. Columbia Contract Co., 67 Or. 412 (135 P. 536). In Schulte v. Pacific Paper Co., supra, the court said: "This statute does not cover every case of an employer's liability to his employee, but only the specific cases enumerated in the act". However, as said in Hoffman v. Broadway Hazelwood, supra, this court, in later cases, has given a much more liberal interpretation to the act and has held consistently that the cases of employers' liability are not limited to those specified in section 1, but that, if reliance is had on the "and generally" clause, the case must be one of the general kind mentioned specifically in the preceding parts of the act: Freeman v.Wentworth Irwin, 139 Or. 1 (7 P.2d 796; Bottig v. Polsky,101 Or. 530 (201 P. 188).

If it be assumed that the work involved a risk or danger within the meaning of the act, it was the duty of the employer to "use every device, care and precaution which it is practicable to use for the protection and safety of life and limb". Liability can not be predicated upon the mere fact that the work involved a risk or danger. The plaintiff must go further and show a breach of duty on the part of the company. In all the cases before this court where the act has been applied there was involved either some defect in the machinery or structure; failure to use proper safety devices, appliances, or guards; unsafe place in which to work; or improper method or manner of conducting operations. Never before has it been contended that the act was applicable to a state of facts similar to those upon which the instant action is based.

We are confronted then with the question: Was it actionable negligence for the defendant company to direct or permit the plaintiff to engage in work beyond his physical capacity, when it was the only work available? If the act is to be construed in accordance with the contention of the appellant, it would make the employer practically an insurer. In the instant case, the plaintiff, according to his own testimony, was given the only job available. Can it be that the defendants must pay $15,000 because, peradventure, the work was not suited to his physical condition? Was the defendant, regardless of the seniority rights of other employees, negligent because it did not create a job in keeping with the physical capacity of the plaintiff? It is suggested that there is evidence that the claim agent Stewart promised plaintiff "light work". If he did, he was acting beyond the scope of his employment. His business was to settle and adjust claims. He had nothing to do with the operation of the company's car shops. Furthermore, this is not an action for breach of contract. We are convinced that the act, under its most liberal construction, was never intended to give redress in an action of this kind. Since the act, in our opinion, has no application and there plainly could be no recovery under the common law rules of negligence, the defendants were entitled to a directed verdict.

At this juncture it is well to bear in mind that we have not before us a case involving defective machinery or appliances; negligent manner or method of operation (Bottig v. Polsky, supra); or failure to provide a reasonably safe place in which to work (Fitzgerald v. Oregon-Washington R. N. Co., supra). Neither does it involve accidental injury.

In our opinion, Bevin v. Oregon-Washington R. N. Co.,136 Or. 18 (298 P. 204), has no application to the case at bar. In the Bevin case the use of a defective tool was involved. Furthermore, that case was tried under the Federal Employers' Liability Act. Neither is New York Central H.R.R.Co. v. Vizvari, 210 F. 118 (L.R.A. 1915C, 9), in point for in that case the employee was also working with a defective tool. Appellant relies strongly upon Fitzgerald v. O.-W.R. N. Co., supra, and Bottig v. Polsky, supra. We think these cases do not support his contention. In the one first cited the facts disclose a failure to furnish plaintiff therein a reasonably safe place in which to work, in that the stairway on which he was injured was unlighted. The second case involved the negligent manner or method of loading barrels in a box car.

A discussion of the doctrine of assumption of risk is not pertinent to the issues for, if the Employers' Liability Act applies, assumption of risk is no defense: Freeman v. Wentworth Irwin, supra; Peluck v. Pacific Machine Blacksmith Co.,134 Or. 171 (293 P. 417); Poole v. Tilford, 99 Or. 585 (195 P. 1114). Hence no discussion of cases concerning such doctrine will be made. The case under consideration was submitted to the jury solely under the Employers' Liability Act (§§ 49-1701 to 49-1705, inclusive, Oregon Code 1930).

The order of the trial court setting aside the judgment and granting a new trial is affirmed.

RAND, ROSSMAN, and BAILEY, JJ., concur.