McPherson v. Pacific Bridge Co.

Strahan, C. J. — The particular structure upon which the plaintiff was working at the time of the injury complained of was the frame necessary to support a water tank. This is the plaintiff’s statement at the trial, of the injury and how it occurred: “When we got the bent together, — when we got everything ready to raise it, — the engine did not come along in time. There was a team there that was used to haul sand, and he (Martin, the foreman,) said we would hook that team on it and raise it with them. He did hook the team on it and started to raise it up, and they could not raise it, and he told us all to come and give the team a lift. There were five of us, and we came and gave the team a lift to raise it up; we got it raised two or three feet and it came back on us, and then he said for a couple of us to go and get a couple of shores and put under it and hold it up; so two men got sticks and put under it, and they raised it so they could help with the shores, and they put them under and caught it. The team hauled it a piece and then they would catch it with the shores; the team hauled it a piece further and got it quite a ways up, and it stopped again; and he said, ‘ some one go and get a long shore.’ I went and got a stick 2x8,16 feet long, and they raised it; and I caught it the first time and held it and they started again. The next time they started the team, it came back and I did not catch it, and the shores were too far and it tipped over on me.” The plaintiff’s counsel claims in effect, on the argument in this court, that a general allegation of negligence and carelessness was sufficient; but that contention cannot be sustained. Such allegation does not charge a fact. (Woodward v. O. R. & N. Co. 18 Or. 289.) This leaves nothing upon which a recovery could be predicated but the charge of defective machinery. What particular machinery was used, or in what the alleged defects consisted, is not alleged; but conceding, as the defendant made no objection on the ground [490] of this uncertainty, that he ought not to be permitted to raise it now for the first time, the question of fact arises necessarily on the motion for a non-suit, and this brings us to the main question in this case. On the argument here, the only defective machinery claimed to be in the case was the team hitched to the end of the rope and used for the purpose of lifting the bent. The court instructed the jury that as the team performed the office of a machine, and it was to be regarded as one; and the respondent’s counsel contended that if this team was unable to lift the bent by hauling at the rope, the allegation of the use of defective machinery was made out. We are unable to concur in this view. A team is in no sense machinery, any more than a man would be hauling at the same rope. But without placing our decision on this question alone, we have carefully viewed all the evidence offered by the plaintiff, and giving full effect to every inference which might be drawn from it, it is not shown that the defendant was negligent. So far as appears, due care was used about the work by the defendant, and the' injury which the plaintiff received was either the result of an accident, for which no one is responsible, or his own carelessness and inattention in failing to have his shore in proper position to receive the bent when the horses stopped pulling. If the shore which plaintiff held had been in proper position, there can be no doubt that the bent would have rested upon it and the injury would not have occurred. For this unfortunate circumstance it is certain the defendant is not responsible. It violated no duty it owed to plaintiff. We have not thought it necessary to* consider or decide the other question argued by the appellant’s counsel, which is that the defendant was not doing the work when the injury occurred, and that the plaintiff was not employed by it at the time, for the reason that the other questions are decisive of the case. The judgment must be reversed and the cause remanded [491] to the court below, with directions to allow the defendant’s motion for a non-suit.