Olsen v. Silverton Lumber Co.

Opinion by Mr. Chief Justice McBride. 1. The complaint is not so definite as it should have been made in regard to the details of the negligent acts or omissions of defendant, which it is claimed brought about the injuries suffered by plaintiff; but, taking it as a whole, we think it sufficiently appears that it was plaintiff’s intention to predicate his right to recover upon, first, the failure of defendant to furnish a suitable signal wire, and, second, upon its employing an incompetent signalman. In the absence of a demurrer, or a motion to make more definite and certain, or a [176] motion to compel plaintiff to elect upon which aspect of his complaint he would proceed, we think the complaint was sufficient to justify the court in admitting testimony as to either theory, or both. 2. Defendant denies any negligence whatever in the premises, and attempts to plead assumption of risk on the part of plaintiff in the following terms: “That on the 2d day of February, 1910, and for some time prior thereto, this plaintiff was in the employ of this defendant at its logging camp near Silverton, Oregon, in the capacity of a hook-tender. That this plaintiff was an experienced man at this kind of work, and fully knew, realized, and appreciated all of the dangers, risks, and hazards of his employment as such hook-tender, and on said 2d day of February, 1910, this plaintiff assumed all of the dangers, risks, and hazards incident to his employment. That the alleged injury of which he complains was the result of one of the ordinary risks of the work that he was doing on the said 2d day of February, 1910, at the time he met with said alleged injuries.” Taking this allegation separately from the general answer and denial, it amounts to a mere legal conclusion, and presents no issuable fact. Eeading it in connection with the previous denial that the wire was rotten, knotted, and unfit for use, it presents practically the defense that the wire was suitable for the purpose intended, and that plaintiff assumed the risks incident to his employment with a sufficient wire in use. If plaintiff knew the wire was old and rotten and knotted, so as to be liable to catch on the brush and become unworkable, this should have been pleaded, instead of the statement that he knew the risks of his employment, which risks are not specified in the complaint, and that he assumed such unspecified risks, which is a mere conclusion of law. We conclude that the question of assumption of risk is not in the case. [177] 3, 4. It is claimed that the court erred in admitting testimony tending to show that plaintiff had informed defendant’s foreman of the condition of the wire, and requested him to furnish a new one, and that the foreman had promised to supply it, and failed to do so. It is urged with much plausibility that, in the absence of any pleading on the part of plaintiff of such request and promise, the evidence was not admissible. There is no lack of authority, coming generally from those courts who hold that the plaintiff must in his complaint negative assumption of risk and contributory negligence, that, where the plaintiff seeks to recover in a case in which he relies upon an unfulfilled promise to repair, he must plead and prove the promise, and allege the nonfulfillment of it. This is notably the case in Indiana, Vermont, Rhode Island, Connecticut and Kentucky. But in this state assumption of risk, like contributory negligence, is an affirmative defense. It is incumbent upon the plaintiff to aver and prove the injury and the negligent act of the defendant producing it. If the defendant wishes to show that plaintiff had previous knowledge of the defect, and assumed the risk, it is its duty to plead that knowledge in such terms that the plaintiff may specifically controvert the defense by pleading and proof. There is nothing in the answer which charges that plaintiff knew that the signal wire was spliced or knotted or out of condition. On the contrary, the pleading is to the effect that it was sufficient for the purpose, and that the accident was one of the ordinary risks assumed by him, or was caused by his own negligence or that of a fellow-servant. Under these circumstances we think that the testimony was admissible, and the instructions predicated thereon proper. There was no evidence on the part of the boy, and the court erred in submitting this branch of the case to the jury. [178] 5. Among the matters, the court gave the following instruction: “The defendant must also provide safe and suitable appliances and competent fellow-servants, and the risk was not in itself an assumed risk.” This is going further than the law warrants, in that it makes the duty of the employer absolute, and eliminates the element of reasonable care. An employer, aside from those duties enjoined by statutes passed since this cause arose, is required to use reasonable care and diligence to provide and maintain reasonably safe appliances, and to exercise like care and diligence in the selection of competent servants, and here his duty in these respects ends. The instruction given would practically make him an insurer. It follows that the judgment will be reversed, and, as the pleadings both of the plaintiff and defendant are ambiguous, and may be corrected so that clearly cut issues can be presented, the cause will be remanded to the court below for a new trial. Reversed. Mr. Justice Bean, Mr. Justice Eakin and Mr. Justice McNary concur.