Baldassarre v. West Oregon Lumber Co.

Decision Date16 January 1952
Citation193 Or. 556,239 P.2d 839
PartiesBALDASSARRE v. WEST OREGON LBR. CO.
CourtOregon Supreme Court

Nels Peterson, Portland, argued the cause for appellant. On the briefs were Green, Landye & Peterson and Frank H. Pozzi, all of Portland.

Cleveland C. Cory, of Portland, argued the cause for respondent. With him on the brief were Hart, Spencer, McCulloch, Rockwood & Davies, Hugh L. Biggs and George H. Fraser, all of Portland.

Before HAY, Acting C. J., and ROSSMAN, LUSK, LATOURETTE and WARNER, JJ.

LUSK, Justice.

While working as an employee of defendant, West Oregon Lumber Co., at its sawmill in Portland, Oregon, the plaintiff was injured as the result of a piece of lumber striking his left foot. He sued the defendant for damages, claiming that the injury was caused by the defendant's negligence. The jury returned a verdict for the defendant, and from the consequent judgment the plaintiff has prosecuted this appeal.

The accident occurred on October 13, 1947. Plaintiff's job was to pull lumber from the 'sizer chain' and pile it on the 'jitney block.' As explained in the testimony, the sizer chain is a sorting table back of the planer, designed to aid in the sorting of lumber of various grades and lengths after it has been surfaced. The table is equipped with moving chains and along either side with rollers a little below the level of the chains. The lumber comes from the planer, and, as it is carried along on the chains, the members of the crew, standing on raised platforms or walkways on either side of the table, 'pull' the pieces and pile them on the floor, about 25 inches below the walkways. In order to remove a piece from the chain the workman pulls it toward him far enough to enable him to press down on it so that it will come in contact with the roller which carries it off the chain. As it comes off the roller the workman catches it with his hands and then places it on the pile on the jitney block.

On the day of the accident the plaintiff was working on what is referred to as the 'short side' of the chain, that is to say, his duty was to pull the shorter lengths of lumber, in this instance largely 16 foot lengths. The plaintiff testified that the accident occurred when a fellow workman, Patterson, who was on the opposite side of the chain from him, pushed toward him 4 pieces of lumber, 1 X 8 and about 20 feet long. Patterson, as the plaintiff put it, 'pulled too fast' (apparently meaning 'pushed too fast'), as a result of which the plaintiff's hold on the lumber was loosed and it fell on his foot.

This conduct of a fellow servant is charged as negligence.

Other charges of negligence are the following: Failing to provide plaintiff with a reasonably safe place in which to work, in that defendant could have provided a walkway of sufficient width to provide a safe working space and could have installed a 2 X 2 inch guard rail or similar guard rail to protect the foot of the plaintiff; and failing, in the particulars just specified, to use every device, care and precaution practicable to be used which would not have impaired the efficiency of the operation.

All these alleged failures of duty are charged both as violations of the Employers' Liability Act, §§ 102-1601 to 102-1606, O.C.L.A., and as common law negligence; and, in addition, the alleged omissions to provide a walkway of sufficient width and a guard rail to protect the plaintiff's feet are charged to be in violation of certain provisions of the Safety Code for Sawmill, Woodworking and Allied Industries of Oregon, effective January 2, 1946, adopted and promulgated by the State Industrial Accident Commission of this state pursuant to authority vested in it by §§ 102-1228 to 102-1246, O.C.L.A.

The interpretation and application to the case of the following provisions of the safety code are involved in the first assignment of error:

'2.14 (a) Walkways on either side of green chains or sorting tables shall be of sufficient width to provide safe working space.'

'5.4 (b) A two by two (2 X 2) inch guard rail should be installed at the extreme outer edge of these walkways to protect the feet of workers pulling lumber from these chains.'

The walkway on which plaintiff was working was 40 inches in width, and there is some evidence that for the safety of the workmen it should have been wider. It is conceded that there was no guard rail at the extreme outer edge (that is the edge farthest from the sizer chain) of the walkway. Preliminarily it should be said that the provisions of the safety code apply to the defendant in the operation of its sawmill, and, properly interpreted, have the force and effect of law. Varley v. Consolidated Timber Co., 172 Or. 157, 165, 139 P.2d 584. The questions now to be considered arise upon exceptions taken by plaintiff's counsel to two instructions requested by defendant and given by the court, which related to the alleged negligence of the defendant in failing to provide a walkway of sufficient width and a toe guard. The instruction as to the walkway is, in substance, that the defendant was under no duty to maintain a wider walkway than that in use at the time of the accident unless (1) the precise work in which plaintiff was engaged involved risk and danger; (2) it would have been practicable to maintain a wider walkway; (3) a wider walkway would not have impaired the efficiency of the work; and (4) if maintained it would have prevented the accident. As a part of the same instruction the court then charged the jury in the alternative that, even though they should find that the work did not involve risk and danger, nevertheless the duty to maintain a wider walkway would exist if 'an ordinarily careful and prudent sawmill operator under the same or similar circumstances would have maintained a wider walkway', and if, had he done so, the accident would not have occurred.

The point of counsel's exception and the argument in support of it is that, while the instruction submits the issues of violation of the Employers' Liability Act and common law negligence, it omits the issue of a violation of the safety code. The objection would be valid if § 2.14(a) of the code prescribed something higher than the common law duty of the employer to provide its employees with a reasonably safe place to work. We think it is clear that it does not. The section reads that walkways 'shall be of sufficient width to provide safe working space.' We know of no other standard by which to determine what that width should be in the place where the work was going on than the standard of ordinary care. The court had previously instructed the jury that violation of the provision in question would constitute negligence per se. But it was the duty of the court on request to interpret the provision. The rule given to the jury, which adopted the standard of 'an ordinarily careful and prudent sawmill operator', was correct; none the less so, because the safety code provision, properly interpreted, is only a codification of the common law rule with respect to the particular duty of an employer which it embraces.

What has just been said has, of course, no reference to the Employers' Liability Act and the duty of an employer under it. If the jury found that the work involved 'a risk or danger to the employees,' they would apply a higher standard of care, and the jury were so instructed. Fromme v. Lang & Co., 131 Or. 501, 281 P. 120.

The other instruction complained of under this assignment of error is substantially in the language of the instruction just considered with the exception that it relates to the alleged negligence of the defendant in failing to provide a toe guard. The point of the objection is that such failure is a violation of the safety code and negligence per se.

The regulation reads, 'a 2 X 2 inch guard rail should be installed at the extreme outer edge of these walkways', etc. (Italics added.) The question turns on the effect to be given to the word 'should.' One definition of that word is 'Obligation in various degrees, usually milder than ought; as you should be obedient.' Funk & Wagnall's New Standard Dictionary. As a reference to the cases cited in 39 Words and Phrases (Perm. ed.) 234 et seq., and Pocket Part 48, will illustrate, 'should' frequently implies a command, a duty or an obligation. But this is not always so. See Nashville Ry. & Light Co. v. Lawson, 144 Tenn. 78, 98, 229 S.W. 741, 746; Godchaux v. Carpenter, 19 Nev. 415, 421, 14 P. 140, 142. Here, as in so many other instances, the meaning of the word and the intention to be ascribed to those who used it must be determined by the context. The provision in which it is found is one of several score safety regulations for the sawmill industry, most of which use 'shall', as, for example, 5.14(a), which immediately precedes the provision in question and reads, 'The vertical face of all green chains and sorting tables shall be boarded up to a height not less than eighteen (18) inches from the floor of the walkway.' The occasional use of 'should' instead of 'shall' does not appear to be inadvertent but deliberate. Indeed, the entire code bears on its face evidence that it was prepared with great care and scrupulous regard to the right choice of language. We can only conclude that in those instances where departure is made from the mandatory 'shall' to the somewhat ambiguous 'should', the purpose was to express a different meaning--to convey the notion that the particular precaution was desirable and recommended, but not required. See, 3 Sutherland, Statutory Construction (3d ed.), 116, § 5821. In this view the regulation was not legally binding on the defendant and the instruction complained of was free from error.

It follows, also, that reversible error was not committed by the court in permitting the witness, James R. Grady, to testify to the distinction in meaning between 'shall' and 'should' in the safety code. Admission of this testimony over...

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