Marks v. Bauers

ROSS, Circuit Judge (after stating the facts as above). Sections 6785, 6786, 6787, and 6790 of the Employers’ Liability Act (Or. L.) contain, respectively, these among other provisions: “All owners, contractors, subcontractors, corporations or persons whatsoever * * * having charge of, or responsible for, any work involving a risk or danger to the employees or the public, shall use every device, eare 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 manager, superintendent, foreman or other person in charge or control of the construction or works or operation, or any part thereof, shall be held to be the agent of the employer in all suits for damages for death or injury suffered by a.n employee. “It shall be the duty of owners, contractors, subcontractors, foreman, architects or other persons having charge of the particular work, to see that the requirements of this act are complied with, and for any failure in this respect the person or persons delinquent shall, upon conviction of violating any of the provisions of this act, be fined not less than ten dollars, nor more than one thousand dollars, or imprisoned not less than [518] ten days, nor more than one year, or both, in the discretion of the court, and this shall ■not affect or lessen the civil liability of such persons as the case may be. * * * “The contributory negligence of the person injured shall not be a defense, but may be taken into account by the jury in fixing 'the ¿mount of the damage.” The rulings of the trial court regarding the Oregon Compensation Act were in accordance with the decision of the Supreme Court of the state in the case of Olds v. Olds, 88 Or. 209, 171 P. 1046. As’will have been seen, section 6787 of the Oregon Laws expressly declares it to be the duty of the '“owners, contractors, subcontractors, foreman, architects, or other persons having charge of the work” in question to see that the ’ Employers’ Liability Act is complied with. That duty is by the statute distinctly placed upon each of those specifically mentioned, and all other persons having charge of the particular work, in precisely the same, way and to precisely the same extent. Neither the owners nor the superintendent are by the statute made any more responsible for the construction or operation of the particular structure in question than the foreman. The duty so imposed upon each can no more be delegated by the one than by the other. Such being the statute of the state, the courts are bound by it. The Oregon eases cited by Judge Wolverton seem to us to sustain’ that view. Hoag v. Washington-Oregon Corp., 75 Or. 588, 144 P. 574, 147 P. 756; Harvey v. Corbett, 77 Or. 51, 150 P. 263; Malloy v. Marshal Wells Hardware Co., 9 Or. 303; Davis v. Payne, 108 Or. 72, 216 P. 195. And much to the same effect are the cases of Richards v. Fleming Coal Co., 104 Kan. 330, 179 P. 380, and Frese v. Chicago, Burlington & Quincy R. R. Co., 290. Mo. 501, 235 S. W. 97; the latter being approved by the Supreme Court of the United States in 263 U. S. 1, 44 S. Ct. 1, 68 L. Ed. 131. In that case the statute which controlled the ease was one of the state of Illinois, which required “all trains running on any railroad in this state, when approaching a crossing with another railroad upon the . same level, or when approaching a swing or draw bridge, in use as such, shall be brought ■.'to a full stop before reaching the same, and .within eight hundred (800) feet therefrom, and the engineer or other person in charge •of the engine attached to the train shall positively ascertain that the way is clear and ■that the train can safely resume its course before .proceeding to pass the bridge or crossing.” In deciding the case, the Supreme Court said: “Moreover, the statute makes it the personal duty of the engineer positively to ascertain that the train can safely resume its course. Whatever may have been the practice, he could not escape this duty, and it would be a perversion of the Employers’ Liability Act (Act April 22, 1908, c. 149, § 3, 35 Stat. 65, 66) to hold that he could recover for an injury primarily due to his failure to act as required, on the ground that possibly the injury might have been prevented if his subordinate had done mote. - See Great Northern Ry Co. v. Wiles, 240 U. S. 444, 448. If the engineer could not have recovered for an injury, his administratrix cannot recover for his death. Michigan Central R. R. Co. v. Vreeland, 227 U. S. 59, 70.” The judgment is affirmed. • ’