Subbo v. Pacific Coast Const. Co.

Mr. Justice Eakin delivered the opinion of the court. 2. The rule is that an employee assumes as incident to the employment certain risks, among them being the risk of injury caused by the negligence of a fellow-servant. It is necessary to determine whether this injury was occasioned by the negligent act of a fellow-workman or was the result of the failure of the master to perform some duty which it owed to the employee. As shown by Mr. Justice Bean in Mast v. Kern, 34 Or. 247 (54 Pac. 950, 75 Am. St. Rep. 580), there are two lines of decision upon the question of who is a fellow-servant for whose negligence the employee assumes the risk, as distinguished from the negligence of the master. One line of authorities holds that when the master has given to an employee supervisory control of his business, or some particular department of it, [410] such, person, while so acting, stands in the place of the master as to those under his direction, and that for his negligence the master is liable. Under this rule the liability of the master is made to depend upon the rank or grade of the person whose negligence caused the injury. The other line of authorities holds that the master’s liability depends upon the character of the act in the performance of which the injury arises and not upon the rank or grade of the negligent employee. 3. The former rule is followed in Ohio, Kentucky, Illinois and Washington; but the weight of authorities holds that the master’s liability depends upon the character of the act rather than upon the rank of the negligent workman. This is the recognized rule in this jurisdiction: See Allen v. Standard Box & Lumber Co., 53 Or. 10 (96 Pac. 1109, 97 Pac. 555, 98 Pac. 509); Kovachoff v. St. Johns Lumber Co., 61 Or. 174 (121 Pac. 801). It is held in New England R. Co. v. Conroy, 175 U. S. 323 (44 L. Ed. 181, 20 Sup. Ct. Rep. 86): “The employer is not liable for an injury to one employee occasioned by the negligence of another engaged in the same general undertaking; that it is not necessary that the servants should be engaged in the same operation or particular work; that it is enough, to bring the case within the general rule of exemption, if they are in the employment of the same master, engaged in the same common enterprise, both employed to perform duties tending to accomplish the same general purposes, or, in other words, if the services of each in his particular sphere or department are directed to the accomplishment of the same general end; * * that the question turns rather on the character of the act than on the relations of the employees to each other. If the act is one done in the discharge of some positive duty of the master to the [411] servant, then negligence in the act is the negligence of the master; hut, if it he not one in the discharge of such positive duty, then there should be some personal wrong on the part of the employer before he is held liable therefor.” So that the question to be determined here is whether the defendant omitted to perform some duty the master owed to the servant. The plaintiff complains that it neglected to furnish wooden tamping rods, but that it furnished iron ones for the purpose of tamping the powder. It is shown by the testimony of plaintiff that proper wooden rods were furnished by defendant, but that it furnished no iron rods for tamping the powder; that the act of dislodging the powder in the hole which was being charged was a detail of the work; and that carelessness in the performance of the work was carelessness of a fellow-workman for which the defendant was not liable. It may be that the act adopted by the people November 8, 1910, providing for the protection of persons engaged in construction work (Laws 1911, p. 16), was intended to change the rule in Oregon to conform to what is referred to as the Ohio rule; but that act was adopted subsequent to the injury complained of here and is not relied on by the plaintiff. 4. The work being done that caused the premature explosion was a detail of the work: American Bridge Co. v. Seeds, 144 Fed. 605 (75 C. C. A. 407, 11 L. R. A. (N. S.) 1041). And for negligence of those performing the work the master is not liable. We find no error in the instruction complained of. The judgment is affirmed. Affirmed.