Coomer v. Supple Investment Co.

Action for damages for personal injuries, brought under the Employers' Liability Act. Defendant appeals from judgment in favor of plaintiff.

AFFIRMED.

This is an action for damages for personal injury received by plaintiff on premises and while using appliances belonging to defendant. Plaintiff was in the employ of Pacific Building Materials Company as a laborer. Defendant is a corporation engaged in operating a dock and warehouse within the port of Portland on the Willamette River. On the eleventh day of February, 1926, plaintiff was injured while moving cement in the course of his employment on a runway and hoist operated by defendant. The complaint charges defendant with having violated Section 6785, Or. L., in failing to construct its runway and hoist with the care which it should have exercised. The charging part of the complaint is as follows:

"That the defendant failed to exercise every care and precaution practicable to use for the safety of life and limb in that it was practicable without impairing the efficiency of the work for defendant to have kept the spikes or nails in the boards on said runway from protruding above the said boards and so that they would not become caught in the aforesaid chain; that the defendant should not have nailed or spiked the said boards in place where the said nails could come loose and project above the boards, and come in contact and catch on said chain; that it would have been practicable without impairing the efficiency of the work to have used bolts with nuts in the building of said runway, and to have screwed up said nuts tightly and to have placed stripping over the same which would have prevented the bolts from protruding, and as a direct and proximate result of the violation of said Employers' Liability Law of Oregon, plaintiff received the injuries hereinbefore set forth."

Plaintiff demands damages in the sum of $17,500. Plaintiff recovered judgment based on the verdict in the sum of $2,027. Defendant appeals alleging error based on the orders of the court on admissibility of testimony; the refusal of the court to give an instruction requested by defendant; the giving of certain instructions, and denying defendant's motion for a directed verdict. AFFIRMED. Defendant does not insist in its brief on the alleged errors of the court in ruling on the testimony. Defendant insists earnestly, however, on its assigned error based on the court's denying its motion for a directed verdict. Its argument in that behalf is that there is no evidence tending to show that defendant had any knowledge of the defective condition of the runway or hoist. It cites a number of authorities supporting its contention but none of those authorities is from the courts of this state. The rule of law is well established in this state that an employer must exercise every care and precaution practicable to use for the safety of life and limb of its employees and the public: Or. L., § 6785. Said Section is a part of the law known as the Employers' Liability Act (Or. L. §§ 6785-6791). The law requires an employer to exercise every reasonable care and precaution requisite to protect its employees and others having a duty or a legal right to be on the premises of the employer from injury: Rorvik v. North Pac. Lbr. Co., 99 Or. 58 (190 P. 331, 195 P. 163); Turnidge v. Thompson, 89 Or. 637, 646 (175 P. 281); Clayton v. Enterprise Electric Co., 82 Or. 149 (161 P. 411); Morgan v. Bross, 64 Or. 63 (129 P. 118); Cauldwell v. Bingham Shelley Co., 84 Or. 257, (155 P. 190, 163 P. 827); Pacific States Lbr. Co. v. Bargar,10 F.2d 335. Rulings of the courts of other jurisdictions and principles stated by text-writers based on other statutes than our own are not pertinent.

The instruction requested by defendant and refused by the court contained this language:

"But even though you should find there were protruding nails or spikes, that fact alone would not be sufficient to entitle plaintiff to recover. We must go further, and not only satisfy you by a preponderance of the evidence these nails and spikes were protruding, but that defendant company knew, or ought to have known it by the exercise of ordinary care."

What we have said above is equally applicable to defendant's contention regarding this requested instruction. The court did not err in refusing to give that instruction.

The instructions given by the court and excepted to were properly given. They cover a correct statement of the law regarding defendant's liability for defects in the hoist and runway. They also covered the liability of defendant toward the plaintiff. It is contended by defendant that it would not be liable to plaintiff because he was not an employee of the defendant. Plaintiff was an employee, however, of a customer of defendant and was on the premises of defendant using its appliances while lawfully engaged in his occupation. Plaintiff is therefore under the protection of the Employers' Liability Act: Rorvik v. North Pac. Lbr. Co., above.

Defendant also strenuously insists that plaintiff having accepted partial compensation from the State Industrial Accident Commission had thereby elected a remedy and could not now maintain this action. Passing without deciding the question whether or not defendant is entitled to raise that question without pleading in abatement, defendant's position is untenable. This court has also ruled upon that identical question and we decline to re-examine it: Hicks v. Peninsula Lumber Co.,109 Or. 305 (220 P. 133).

It has also been ruled in this state that whether or not certain work is hazardous is a question of fact: Wolsiffer v.Bechill, 76 Or. 516 (146 P. 513, 149 P. 533); Bottig v.Polsky, 101 Or. 530 (201 P. 188). The same rule has been made upon the question whether or not any additional care should have been taken for the protection and safety of life and limb without materially destroying the usefulness of the appliances in use:Yovovich v. Falls City Lumber Co., 76 Or. 585, 149 P. 941. The jury decided both said questions under proper instructions. We find no error and the judgment is affirmed.

AFFIRMED.

BEAN, BROWN and BELT, JJ., concur.