Lamm v. Silver Falls Timber Co.

*475 BROWN, J. The plaintiff’s testimony indicates that at the time of the injury he was 44 years of age, resided in Silverton, and was in good health; that after reaching the age of 17 or 18 years, he had spent his life as a workman in the woods; that he had done “logging, slung hook, attended camp, and chased, set choker; done practically all of the work that has to be done in woods”; that he was getting $7.50 the last time he worked in logging, and $5.50 when he was chasing. He testified that he had worked for the defendant company at its camp hereinabove described for 20 or 24 months. Asked to describe the road from Silverton to the camp he testified that «there was a good road from Silverton to Silver Creek falls, but that from Silver *476 Creek falls on to camp, a distance of 10 or 12 miles, the only way of ingress and egress consisted of the Silver Falls logging railroad and a trail. He testified that in his recent employment by the company he was in charge of the rigging crew, and that, when working at that particular task, his day’s work began when he reached the donkey, “when the whistle blows at the donkey”; that he worked eight hours a day and was paid by the hour; that he lived in one of the bunk houses at the camp, paid rent therefor, ate at the cook house and paid for his meals; that, during the time they were moving camp, “they hauled us backwards and forwards over the road.” His undisputed testimony shows that from the time they finished work at night until the next morning’s work began they were not subject to the orders of any person, and that in the interim nobody undertook to tell them what to do. With reference to leaving the camp a few days before he got hurt, he testified: “Q. What arrangement, if any, did you then make with the company as to when you were to resume work or continue? A. Not any. “Q. Did you talk with any one about it? A. No. “Q. Did you speak to your foreman? A. I told him I was on vacation. “ Q. How did your vacation commence, or what kind of an arrangement was it? A. The hunting season was on then and he told us if we would stay on a while while the rest of the crew laid off he would give us a vacation. And Friday morning he told me that I could lay off. “Q. Where was that he told you that? A. At the camp. # # # # # ‘ ‘ Q. How long did he tell you that you could lay off ? A. I don’t remember whether he gave us any particular time to lay off. We stayed 9 or 10 or 11 days.” He testified that during the period of his lay-off he was answerable to nobody for his movements, and that *477 he received no pay for the time he was absent from the camp; that he came to Silverton intending to go hunting; that about 11:30 a. m. on November 9 he and five others went to defendant’s logging train for the purpose of returning to the logging camp in the mountains; that he got onto one of the cars, and, after the train had moved some 1,500 feet at a speed of 15 or 20 miles an hour, it stopped with a sudden jar, with the result that plaintiff was thrown over the corner of the car on which he was riding, onto the rail, receiving a cut upon his head and being knocked unconscious, and his left arm being so crushed that it was necessary to amputate the same between the elbow and the shoulder. Concerning the injury he further testified: “My back was hurt, and my neck nearly broken in two from my falling in the rocks. * * * I didn’t get any sleep for days and months afterwards. It still hurts me yet.” He testified that the wound which resulted from the amputation had not entirely healed at the time of the trial. Eobert Quail, a former train man, and one of the party that boarded the train with plaintiff at the time of the accident, testified that when they reached the station where the train pulled out upon that occasion plaintiff asked where the caboose was, and that Eyan, an agent of the company, said he didn’t know; that the train whistled twice, and, when they asked Eyan if it was leaving, Eyan said he didn’t know whether it was or not but “you had better get on if you are going up.” He testified that they then got onto the train which started out at pretty fair speed; that in a very short time it suddenly stopped and “I reached down and pulléd the air to keep them (the ears) from running *478 over him or they would have run over his head. I pulled the air on the cars so the cars couldn’t be moved. As far as a brakeman — I never saw a brakeman around there. He was around the engine somewhere, I guess. ’ ’ The Oregon "Workmen’s Compensation Law provides for compensation for accidental personal injuries arising out of and in the course of the workman’s employment. So, in reaching a determination of this case, the meaning of the phrase “arising out of and in the course of” becomes an important factor. In an attempt to make clear its meaning and its correct application to any given case, leading text writers have devoted much space to its consideration. Likewise many cases are laid down in the reports of this and other states growing out of this much-litigated subject. As to the interpretation to be placed upon the Workmen’s Compensation Acts, 2 Schneider, Workmen’s Compensation Law, § 576, says: “The Workmen’s Compensation Acts should be liberally construed so as to attain the accomplishment of their beneficent purposes. * * * And doubts respecting rights to compensation should be resolved in favor of the employee or his dependents.” See, also, notes under this section. As indicated by our court in Farrin v. State Industrial Accident Commission, 104, Or. 471 (205 P. 984), the same doctrine has been declared by the Supreme Court of Indiana. See the case of In re Duncan, 73 Ind. App. 270 (127 N. E. 289), where it is written: ‘ ‘ The Workmen’s Compensation Act sought the correction of recognized errors and abuses by introducing new regulations for the advancement of the public welfare. Being remedial in character, it should be construed with regard to former laws and the defects or evils to be corrected and the remedy provided. It should *479 be liberally construed to the end that the purpose of the Legislature, by suppressing the mischiefs and advancing the remedy, be promoted, even to the inclusion of cases within the reason although outside the letter of the statute. (36 Cyc. 1175.)” To like effect, see Stark v. State Industrial Accident Commission, 103 Or. 80 (204 P. 151); Dondeneau v. State Industrial Accident Commission, 119 Or. 357 (249 P. 820, 50 A. L. R. 1129). On the same question the editors of Ruling Case Law thus state their view: “The language of the statute is to be construed literally, if there is no reason why it should not be so interpreted. The act means just what it says, and in many respects its language is so plain as to leave no room for construction. In such case the court should not read into the enactment words that are not found therein either by express inclusion or by fair implication. The court may look to consequences, but only where there is room for construction by reason of ambiguous language being used, and where a literal construction would lead to some absurd result.” (28 R. C. L., § 52, Workmen’s Compensation Acts.) That the language, “personal injury by accident arising out of and in the course of the employment,” is the phraseology of the English act, see 28 R. C. L., § 78, Workmen’s Compensation Acts. It is asserted both in the brief and argument that the common law has suffered many changes by reason of the Workmen’s Compensation Act. There is no difficulty in this fact. The practical changes in the common law affected by the enactment of the Workmen’s Compensation Act are discussed in 28 R. C. L., Workmen’s Compensation Act, § 79; and, at section 92, the editors state that in determining as to whether the relationship of master and servant exists, and whether *480 the personal injury arose out of and in the course of employment, the courts resort to the old rules respecting the time and place of the accident. The annotator of a note appearing in 20 A. L. E. at page 319, makes the following statement which we deem particularly worthy of notice in a study of cases of this character: “As a general rule the phrase ‘out of and in the course of the employment’ embraces only those accidents which happen to an employee while he is engaged in the discharge of some function or duty which he is authorized to undertake, and which is calculated to further, directly or indirectly, the master’s business.” To bring a case within the protection of the Workmen’s Compensation Act, the employee must show, as he was required to establish under the common law, that he was, at the time of the injury, engaged in the employer’s business, or in furthering that business, and that he was not doing something for his own benefit or accommodation. See note, L. R. A. 1916A, 48. In the case of Cudahy Packing Co. v. Parramore et al., 263 U. S. 418 (44 S. Ct. 153, 68 L. Ed. 366, 30 A. L. R. 532), the court said: “Workmen’s compensation legislation rests upon the idea of status, not upon that of implied contract; that is, upon the conception that the injured workman is entitled to compensation for an injury sustained in the service of an industry to whose operations he contributes his work as the owner contributes his capital— the one for the sake of the wages and the other for the sake of the profits. The liability is based, not upon any act or omission of the employer, but upon the existence of the relationship which the employee bears to the employment because of and in the course of which he has been injured. * * * No exact formula can be laid down which will automatically solve every case.” This question was before the Michigan Supreme Court in the case of Gertrude Sichterman v. Kent Stor *481 age Co. et al. 217 Mich 364 (186 N. W. 498, 20 A. L. R. 309); and, in rendering the opinion, Mr. Chief Justice Fellows, speaking for the court, wrote: “This state, like many of our sister states, has followed the English act in providing that compensation shall he paid in industrial accidents where the accident arises out of and in the course of the employment. The English courts and the courts of this country with uniformity have agreed that both requirements must be met to justify an award. Both requirements are indicative of the underlying thought that compensation is to be awarded when and where the accident occurs in the service of the master and by reason thereof.” A leading case defining the term “arising out of and in the course of his employment” is McNicol’s Case, 215 Mass. 497 (102 N. E. 697, L. R. A. 1916A, 306). In that case the Supreme Court of Massachusetts, in considering the question as to when a workman is justified in receiving compensation for a personal injury, said: “In order that compensation may be due, the injury must both arise out of and also be received in the course of the employment. Neither alone is enough. It is not easy * * * to give a comprehensive definition of these words. * * * An injury is received ‘in the course of’ the employment when it comes while the workman is doing the duty which he is employed to perform. It ‘arises out of’ the employment when there is * * * a causal connection between the conditions under which the work is required to be performed and the resulting injury. * * * If the injury can be seen * * * to have been contemplated by a reasonable person familiar with the whole situation, * * * then it arises‘out of ’ the employment. * * * The causative danger must be peculiar to the work, and not common to the neighborhood. * * * It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.” *482 See, also, 28 R. C. L., Workmen’s Compensation Acts, § 89. The case of Brady v. Oregon Lbr. Co., 117 Or. 188 (243 P. 96, 45 A. L. R. 812), 118 Or. 15 (245 P. 732, 45 A. L. R. 821), contains valuable citations defining the phrases “in the scope of his employment” and “arising out of and in the course of his employment.” In that case we held that, before any action could be successfully maintained in the courts under the Employers’ Liability Act, the plaintiff was required to allege and prove that he was engaged in the scope of his employment for his employer at the time of the alleged accident ; and, in opinion on petition for rehearing, 118 Or. 15 (245 P, 732, 45 A. L. R. 821), we quoted the following from 1 Dresser, Employers ’ Liability, § 13: ‘£ The rights and duties incident to the relation apply only while the servant is under the master’s power of control and is performing services for him. At other times he is a stranger with the rights and duties of a stranger.” In the latter case we also quoted extensively from the leading case of Elliott v. Payne, 293 Mo. 581 (239 S. W. 851, 23 L. R. A. 706), and again refer to that case. In the original opinion we discussed the case of Fournier v. Androscoggin, 120 Me. 236 (113 Atl. 270, 23 A. L. R. 1156), and adopted the following doctrine enunciated therein by the Supreme Court of that state with relation to accidents to employees under the workmen’s compensation law: “If an accident does not occur ‘in the course of’ it cannot ‘arise out .of ’ the employment. In this particular class of claims the determining factor is, we think, whether the accident occurred in the course of the employment. * * * The words ‘in the course of the employment’ relate to the time, place and circumstances under which the accident takes place. An acci *483 dent arises in the course of the employment when it occurs within the period of the employment, at a place where the employee reasonably may be in the performance of his duties, and while he is fulfilling those duties or engaged in doing something incidental thereto. (Westman’s Case, 118 Me. 133, 142, 106 Atl. 532; Larke v. John Hancock Mut. L. Ins. Co., 90 Conn. 303, 97 Atl. 320, L. R. A. 1916E 584, 12 N. C. C. A. 308; Bryant v. Fissell, 84 N. J. L. 72, 86 Atl. 458, 3 N. C. C. A. 585; Eugene Dietzen Co. v. Industrial Board, 279 Ill. 11, 18, 116 N. E. 684, Ann. Cas. 1918B 764, 14 N. C. C. A. 125.)” To the same effect, see Cox v. Kansas City Refining Co., 108 Kan. 320 (195 P. 863, 19 A. L. R. 90); Payne v. Industrial Commission, 295 Ill. 388 (129 N. E. 122, 13 A. L. R. 518); Twin Peaks Canning Co. v. Industrial Commission, 57 Utah 589 (196 P. 853, 20 A. L. R. 872). The defendant contends that the plaintiff was on the premises of defendant when he sustained his injury. That is true. But that he was not there in the performance of his duty as a logger in the employ of defendant is also true. The plaintiff had nothing to do with the operation of the railroad, nor did he ever perform services for the defendant about the railroad. His testimony shows that he was employed in the woods, and that his labor involved logging operations in the timber. It is a general rule that, except by special contract, the protection of the Workmen’s Compensation Law does not extend “beyond the locality, or vicinity, of the place of labor.” See 1 Honnold on Workmen’s Compensation, § 109. See, also, Hills v. Blair, 182 Mich. 20 (148 N. W. 243); Hoskins v. Lancaster, 3 B. W. C. C., 476. On this point, the Supreme Court of Illinois, in the case of Danville, U. & C. Ry. Co. v. Industrial Commission, 307 Ill. 142 (138 N. E. 289), said: The scope of the employment includes the doing of things not directly connected with the work, but which *484 reasonably may be done within the time of the employment * * * . The controlling factor in determining whether the employee is in the course of his employment is whether at the time of the accident he was within the orbit, area, scope, or sphere of the employment., This is not a case wherein the defendant had agreed to transport its workmen to and from their work daily as a part of its contract with them. It is a case where an injury was sustained by a workman at a time when he was not engaged in the services of the defendant or any one else. When he sustained the injury he was performing no duty that he owed to defendant, and the defendant had no control over him whatsoever. That his journey to Silverton and his return to the camp was purely a personal matter, and that he had performed no services for the defendant for some days, is the undisputed testimony of the workman. Clearly the court did not err in denying the motion for a directed verdict upon the ground that the plaintiff was under the protection of the Workmen’s Compensation Law. Now, with reference to the alleged negligence of the defendant in the operation of its train consisting of a heavy locomotive engine, a box car and 26 logging trucks: It is claimed that, while the train was moving at an estimated speed of 20 miles an hour, the engineer suddenly applied the brakes to the engine but did not apply them to the cars, thus causing the empty cars to jolt and jar with such violence that plaintiff was thrown from the car on which he was riding to the railway track below. Plaintiff says he was riding on the train by invitation of the defendant, and this statement is admitted by defendant. The contested issue relates to defendant’s alleged actionable negligence and plaintiff’s *485 alleged contributory negligence. With respect to this phase of the case, the following excerpt from 10 C. J., pp. 1134, 1135, is pertinent: ‘ ‘ A passenger on a freight or mixed train must exercise care and prudence commensurate with the increased dangers ordinarily incident to the management of such a train. He assumes the inconvenience and additional risks that are usually and reasonably incident to transportation on such a train; but he does not assume any risks which arise from a lack of proper care on the part of the carrier, and hence is not required to anticipate extraordinary dangers incident to the carrier’s negligence.” See, also, sections 1304, 1387, 1481, 1507A of the same text, treating of care and prudence required of passengers on freight or mixed trains, and of the operators of such trains. That the plaintiff herein was a passenger within the meaning of the foregoing declaration of law, see the case of Harvey v. Deep River Logging Co., 49 Or. 583 (90 P. 501, 12 L. R. A. (N. S.) 131). See, also, 4 R. C. L., “Carriers,” § 475; 4 Ann. Cass. 1131, note; 5 L. R. A. (N. S.) 721, note. In the cause at issue, the trial court carefully instructed the jury in the matter of the defendant’s alleged negligence in the operation of its logging train, and likewise with respect to plaintiff’s alleged contributory negligence; and there was no error in its refusal to direct a verdict for defendant on the ground that plaintiff had failed to make out a case of negligence against it. After a careful examination of the entire record in this case we are constrained to affirm the judgment appealed from. Bean, Belt and Eossman, JJ., concur.