Barker v. Portland Traction Co.

Petition for rehearing denied March 25, 1947 ON PETITION FOR REHEARING (178 P.2d 706) 7. The brief filed by the respondent in support of his petition for a rehearing states two contentions. The first of these follows:

"The decision is contrary not only to the Fitzgerald case, but to the law as established by other decisions and of this and other courts to the clear effect that if the general characteristics of an employment involve risk and danger an employe is covered by Employers' Liability legislation regardless of whether his particular duties when injured are inherently dangerous."

The second is:

"The plaintiff in this case was clearly engaged in work involving risk or danger under the Employers' Liability Act at the time of his injury in the light of the above cases, both as the operator of a streetcar and also as to the particular work of clearing the switch, and at the least he is entitled to have this question submitted to a jury in a new trial."

The brief filed by the respondent in support of his petition for a rehearing, like his original brief, relies upon Fitzgeraldv. Oregon-Washington R. N. Co., 141 Or. 1, 16 P.2d 27. A score or so of pages of the present brief cite the Fitzgerald decision. The following part of that decision is twice quoted:

"It is not necessary for an employee to be actively engaged in his work in order to be within the protection of the statute. * * * To ascertain whether the statute applies to an employee in a given case, the character of service is determined by the contract of employment. * * * The question is not necessarily what was the employee doing at the very moment he was injured, but what the terms of his employment contemplate he would do when so directed."

That part was quoted in our original opinion which also copied from the Fitzgerald opinion the following, which the respondent does not mention:

"In the instant case, in order to warrant a recovery by reason of the provisions of the Employers' Liability Act, it is necessary not only that it be shown that defendant was engaged in the kind of work embraced within the terms of that statute, that the plaintiff was defendant's employee acting within the scope of his employment, and that the terms of his employment contemplated the performance by plaintiff of work involving risk and danger; but also that the proximate cause of plaintiff's injury was one included within the terms of the statute."

By reverting to the excerpts of the Fitzgerald opinion upon which the respondent relies, it will be seen that no part of the excerpts support — at least not expressly — the respondent's contention that if the duties generally performed by an employe are protected by the Employers' Liability Act he is entitled to recover under the act for an injury which befell him while he was doing something which was not affected by the act. No part of the Fitzgerald decision says that an employe who sustained an injury while he was (1) not engaged in construction work; (2) not working around scaffolding, electricity, machinery, a floor opening or dangerous substances; or (3) not performing work which involved "risk or danger," may nevertheless recover under the act.

Our original opinion, referring to the Fitzgerald case, said:

"The attacked judgment was sustained on the ground that, through the defendant's failure to comply with requirements of the lighting statute, the defendant's `works' in which the plaintiff was required to perform his duties were rendered unsafe, in violation of the Employers' Liability Act." The brief of the respondent, filed in support of his

petition for a rehearing, says:

"We respectfully submit that a reading of the Fitzgerald decision together with that of the Act makes it clear beyond doubt that the question of unsafe or defective `works' had nothing whatever to do with the determination by this court in that case of the basic question of whether the employment of the plaintiff, either at the time of his injury or otherwise, involved risk or danger."

We have read again the Fitzgerald decision. In doing so we re-examined the briefs and the abstract of record filed in that case. The complaint which instituted the case consisted of five paragraphs. The first alleged the corporate character of the defendant; the second averred that the defendant maintained a railroad yard in Portland; the third described the two-story building in which the plaintiff worked and the activities which were carried on in that structure by him and the other employes; the fourth, which is the one that makes the charge of negligence, follows:

"That on or about the said 10th day of February, 1931, defendant carelessly and negligently failed and neglected to have the said passageway and stairway properly and sufficiently lighted during working hours, and carelessly and negligently failed and neglected to keep a proper and adequate light burning in the hallways near said stairs from the time said building was open until it was closed, and carelessly and negligently failed to furnish and supply said premises with switching and controlling devices and apparatus so that any lights could be turned on therein at the main points of entrance to said building and defendant carelessly and negligently ordered and directed its employees in and about said premises to keep the lights it did supply in connection therewith turned off except when in actual use, and to turn the same on only when actually in said premises, and defendant further carelessly and negligently furnished as the sole means of lighting the said passageway and stairway a certain electric light situated at a point immediately over the top of said stairway at the point where the same joined said passageway, and carelessly and negligently furnished as the only means of turning on said light a certain pull cord or chain, so situated that defendant's employees, including plaintiff, when turning on said light, were required to go in the darkness to a point at the top of said stairway and reach upward and find said chain or cord, in the darkness, while standing at a point immediately at the top of said stairway, and there was great and imminent danger by reason thereof, that employees, while searching for said light in the darkness, would be unable to locate the top of said stairway and would step off the same in the darkness, or lose their balance at the edge thereof, and fall down said stairway and be injured, all of which defendant then and there well knew."

The fifth paragraph of the complaint averred that when the plaintiff reached for the cord for the purpose of turning on the light at the head of the stairs he fell down the staircase and sustained the injury for which he sought damages.

Without resorting to further analysis, we express a belief that the review of the Fitzgerald decision in our previous decision correctly states its holding.

The respondent's brief repeatedly urges that "if the general characteristics of an employment involve risk and danger" to an employe, he is entitled to recover under the act, even though at the time of his injury he was not doing anything involving "the general characteristics" of his employment. Many pages of the respondent's brief employ the term "the general characteristics of the employment." One of them says:

"The following cases illustrate the application of the rule of the Fitzgerald case that the application of the Act does not depend upon what the employee is doing at the moment of his injury, but by the general characteristics of the employment in which he is engaged, as determined by his contract of employment, and upon whether, by this standard, it can be said that he was engaged in a hazardous employment or occupation involving inherent risk or danger; McKay v. Commission of Port of Toledo, 77 Or. 611 (plaintiff employed on dredge — injured while climbing ladder to hydrant); Rorvik v. North Pacific Lumber Co., 99 Or. 58 (captain of ship loading lumber injured while standing on dock by employee of lumber company delivering lumber). Bottig v. Polsky, 101 Or. 530 (plaintiff employed to load barrels in railroad car, to be stocked in tiers — injured when barrel fell from another tier); Jodoin v. Luckenbach S.S. Co., Inc., 125 Or. 634 (plaintiff employed as longshoreman — injured while pushing hand truck along dock into jitney which had stopped in front of him); Freeman v. Wentworth Irwin, Inc., 139 Or. 1 (plaintiff employed as auto mechanic — injured while pounding on shaft with hard metal hammer); Smith v. Shevlin-Hixon Co., 157 F.2d 51 (plaintiff employed in box factory — injured in jumping down 33-inch drop to place of employment)."

If the contention which we just quoted from the respondent's brief is correct and if, therefore, an employee, whose duties have "the general characteristics" of inherent risk and danger, is entitled to the benefit of the act for an injury which befell him while he was doing something unaffected by inherent risk or danger, then it is possible for two employees who were injured simultaneously by a negligent act of their employer to receive treatment by the courts entirely dissimilar. Let us assume a hypothetical case in which two employes of an electrical concern are injured in the company's warehouse by the falling of ceiling plaster. If one were a lineman who generally worked on the company's poles among power wires, the respondent's construction of the act would entitle him to the act's liberal provisions when he sued his employer for damages. Those provisions, which are several and important, include the one which exacts of employers subject to the act a very high degree of care. Other provisions which would be material in such an action deny to the employer the defenses of contributory negligence and of the fellow servant rule. In the event the employe died as a result of his injury, another provision of the act would enable his widow to maintain a damage action in her own name and still another would authorize her to sue for an unlimited amount of damages. Now let us look at the situation of the other employe in our hypothetical case, and let us assume that he was a book-keeper who performed all of his duties in the warehouse. In an action by him to recover damages for the personal injury he incurred simultaneously with the other, and by the same tortious act, the respondent would not, we believe, contend that he would be entitled to the benefits of the Employers' Liability Act. This latter employe would, therefore, be relegated to reliance upon common law standards. All available defenses could be plead against his action. If he died as a result of his injuries, his widow could not maintain an action for damages. If his estate instituted an action, $10,000 would be the maximum amount recoverable.

Since courts never assume that legislation is intended to accomplish illogical results and divide people into favored and unfavored classes, the results which would follow from the respondent's construction of the act are worthy of mention. Hence, our delineation of the above sitution.

If the respondent's contention is carried to a logical conclusion, it would be necessary for an employe who seeks the benefit of the Employers' Liability Act to prove, not only that he was injured by a defect in his employer's plant or equipment which should have been eliminated, but also that "the general characteristics of the employment in which he was engaged" subjected him to hazards against which the act was intended to afford protection. If he can prove nothing more than that his employer occasionally ordered him to enter the powerhouse, that being the scene of the hazard, his proof will not suffice, for he will have failed to show that "the general characteristics of his employment" were attended with inherent danger and risk. No decision of this court has placed that construction upon the act.

Clayton v. Enterprise Electric Co., 82 Or. 149, 161 P. 411, shows that it is not necessary that the general characteristics of an employment should be under the protection of the act. It held that a fatal injury, which befell an employe due to a hazard which would not have existed had the defendant complied with the Employers' Liability Act, authorized a recovery. In that case, the employe was not in the defendant's employ, but in the employ of one Carl Roe, who maintained a pumping station for the irrigation of his land. The station received electrical power from the defendant by a line which carried "a high and dangerous current, necessarily fatal to any human life subjected to it." A switch in the pumping station, by means of which the power was connected and disconnected, was "not suitable for such voltage as was carried over the wires in question." Further, the wires were not properly insulated. The deceased employe, according to the decision, "was entirely ignorant in relation to electricity. He had turned the current off and on only a few times prior to the occurrence causing his death." It seems evident from the decision that "the general characteristics" of his employment did not subject him to the dangers inherent in the defendant's facilities. Immediately prior to his fatal accident the deceased entered the pumping station for the purpose of shutting off the motor. Due to the defective switch and the improper insulation the deceased was electrocuted. The decision makes it manifest that it is not necessary that the general characteristics of an employment be hazardous, provided that the duty which the employe was performing was within the purview of the act, and provided that the injury was due to a violation of the requirements of the act.

We have carefully examined the numerous authorities cited by the respondent, but do not believe that any of them authorize the construction which he urges us to place upon the Employers' Liability Act. We remain satisfied with the interpretation which our previous decision used, and are convinced that it is in harmony with the construction that this court has always employed.

All parts of the petition for a rehearing and its accompanying brief have received from us careful attention. The petition for a rehearing is denied.