Poullos v. Grove

Mr. Justice Burnett delivered the opinion of the court. There is testimony on behalf of the plaintiff to the effect that he applied to the defendant for employment; that the latter told him there was not much to do, but that if he needed work he would employ him, paying him whatever was right and that after a while when there was more to do he would recompense him with money; and further, that for several days he worked about the farm cutting and burning brush, helping to pick up lambs, and milking. Belating to the mishap in question, he testifies that in the evening when supper was over and after dark the defendant’s son remarked that it was time to go and feed the horses, whereupon the defendant, to quote the witness, said: “Well, he says to me, ‘You had better go with him and help him to do that, too; he will show you where the hay is, and you will know yourself next time,’ and I told him, ‘All right. ’ “Q. What did you do? “A. His son stepped out of doors and got the lantern, and lighted the lantern, and started for the barn, and I was following him. “Q. Had you ever been in the second story of that barn before ? “A. No. * * “Q. And after you got to the bam, where did you go? “A. We started to go upstairs, up to the upper deck. “Q. And how were you traveling? “A. I was keeping following him, always right behind him. ‘‘Q. And what was the condition, so far as you could see the floor, upstairs? [111] “A. Couldn’t see anything else; just keeping following his tracks. It was too dark, and I couldn’t see nothing else, and following him and following the signs of the light against the other wall of the bam. “Q. And what happened? “A. After I walked about probably four or five feet, something like that, then I fell through,, fell all at once; I don’t know how I fell, but I hit the second floor; I hit the floor, and I was laying there, I don’t know how long I was laying there; and when I come up to myself I seen Mr. Grove’s son standing beside me with the lantern on his hand.” The plaintiff’s further testimony was to the effect that his hip was broken and relates to his subsequent sufferings. It is undisputed that in the second floor over the driveway leading through the barn was a hole six by eleven feet in the clear. The stairway leading up to the hay loft ended twenty-six inches from one corner of the large hole. The plaintiff testified in substance that on the occasion mentioned the defendant’s son preceded him and going up to the loft, passed near the big hole to the west end thereof, turned across and hung his lantern on a post near the southwest corner of the hole; and that the plaintiff following him during this time fell through the hole to the floor below. 1. The court in various forms instructed the jury that if the plaintiff by his own negligence contributed to the injury he could not recover at all. For instance, when the jury returned for further instructions, the court said to them: “If both parties were negligent and the negligence of each contributed directly to the injury, the plaintiff cannot recover. That is the doctrine of contributory negligence.” We have in this case a pleading sufficient to disclose an employment of the plaintiff by the defendant. It [112] states enough to show that, in the manner in which it was to he accomplished, the work at which he was set involved a risk and danger to the employee performing the same. It is said in what is known as the Employers’ Liability Act: “And generally, all owners, contractors or subcontractors and other persons having charge of, or responsible for, any work involving a risk or danger to the employees or the public, shall use every device, care 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.” We have decided in effect on numerous occasions that this language enlarges rather than restricts the particular words used in the first part of the section, from which the excerpt is taken. For instance, in Yovovich v. Falls City Lumber Co., 76 Or. 585 (149 Pac. 941), we applied it to a case where the plaintiff’s decedent was killed by the release of a tree which had been bent over by another fallen tree from which he had cut a saw log. The statute was held applicable in Marks v. Columbia County Lumber Co., 77 Or. 22 (149 Pac. 1041, Ann. Cas. 1917A, 306), where the plaintiff was injured by the action of a fractious horse which he was using to haul lumber for the defendant. In Dorn v. Clarke-Woodward Drug Co., 65 Or. 516 (133 Pac. 351), the work involved was the installation of a transom in the' wall of an office requiring the use of a ladder which slipped and allowed the plaintiff to fall upon the floor whereby he received the injuries of which he complained. The enactment was applied there. It governed the case of Schaller v. Pacific Brick [113] Co., 70 Or. 557 (139 Pac. 913), where the plaintiff was injured in working about a pressed brick machine. It ruled in Heiser v. Shasta Water Co., 71 Or. 566 (143 Pac. 917), in which the injury was the result of an explosion of a syphon bottle filled with carbonated water. We decided for the plaintiff under the act in Mackay v. Commission of Port of Toledo, 77 Or. 611 (152 Pac. 250), where, owing to a defect in a ladder, it slipped upon the deck of a dredger on which the plaintiff was at work for the defendant whereby he was thrown to the floor and injured. A fair construction of the complaint in this instance makes ont a cause of action within the purview of the legislation mentioned. The instructions of the court excluded the plaintiff from recovery if it should appear that his own negligence contributed in any degree to the injury which he claims he suffered. Section 6 of the statute, however, says: “The contributory negligence of the person injured shall not be a defense, but may be taken into account by the jury in fixing the amount of the damage. ’ ’ In other words, the enactment does away with the old rule of requiring the employee to carry the whole risk of the employment and to fail of recovery if his own neglect contributed in any way to the injury of which he complains. The new legislation on the contrary allows contributory negligence to be used only to mitigate the actual damages and measure them out between the parties in proportion as the fault of each of them contributed to the injury happening to the plaintiff. 2. As a matter of law we cannot classify the infinite variety of employments and say that some of them are works involving risk or danger and that others are not. [114] As stated by Mr. Justice Benson in Mackay v. Commission of Port of Toledo, 77 Or. 611 (152 Pac. 250): “The question as to whether or not the work involved a risk or danger is one of fact, to be determined by the jury, rather than a question of law.” Each ease must depend greatly on the attendant circumstances. The conditions under which the work was to be performed must be considered as well as the class of employment. All such things affect the question of whether the task involves risk or danger, and this must be left to the jury under proper instructions. 3. To entirely exclude the plaintiff from recovery if his heedlessness in any way contributed to the injury would be to deprive him of the benefit of the Employers ’ Liability Act and utterly to ignore the theory of the case as framed by his complaint. We have a case of employment where the defendant was the owner of the barn in which the accident occurred. Confessedly, the opening in the floor was without any guard or obstacle to prevent anyone from falling through it. There was enough testimony to go to the jury on the hypothesis that the plaintiff was in the loft in pursuance of the direction of the defendant; that he was ignorant of the existence of the hole, and that he could not see it owing to the darkness and insufficiency of the lantern light. He was entitled to have his case submitted to the jury as he stated it; but by visiting upon him the whole consequence of his carelessness, if any, the court deprived the jury of the right to consider the plaintiff’s grievance as pleaded. The result is that the judgment must be reversed and the cause remanded for further proceedings. Reversed and Remanded. Mr. Chief Justice McBride, Mr. Justice Harris and Mr. Justice McCamant concur.