Bartley v. Doherty

• Decision Date: 23 November 1960
• Citation: 357 P.2d 521,225 Or. 15
• Parties: Bud BARTLEY, Respondent, v. John D. DOHERTY, also known as Dan Doherty, Appellant.
• Court: Oregon Supreme Court

Page 521

357 P.2d 521

225 Or. 15

Bud BARTLEY, Respondent, v. John D. DOHERTY, also known as Dan Doherty, Appellant.

Supreme Court of Oregon.

Argued and Submitted Oct. 31, 1960.

Decided Nov. 23, 1960.

Duane Vergeer, Portland, argued the cause for appellant. On the briefs were Vergeer & Samuels and Charles S. Crookham, Portland.

John H. Kottkamp, Pendleton, argued the cause for respondent. On the brief were Fabre, Collins & Kottkamp, Pendleton.

Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and KING, JJ.

KING, Justice pro tem.

This is an action for personal injuries suffered by the plaintiff while working for the defendant and brought under the Employers' Liability Act of Oregon, ORS 654.305 et seq.

During the year 1957, the plaintiff started working on the defendant's ranch near Pilot Rock, Umatilla county, Oregon.

He was employed to perform general ranch and farm duties, including the use of heavy power-driven machinery, and at a monthly salary of $245, of which $45 was deducted for board and room.

The plaintiff had worked for the defendant almost two years. On April 20, 1959, he was instructed by the defendant to use the defendant's D-6 type of Caterpillar tractor and draw a heavy 10-foot disc to break up a plowed field consisting of approximately 80 acres and located some five miles from the home ranch.

The plaintiff had used the D-6 tractor many times before and was quite familiar with its operation and general condition. The defendant also was familiar with the tractor's condition, particularly with the brakes and steering clutches.

This type of tractor has a main hand lever that controls the general power of the tractor. It also has two additional hand levers, one that operates on and at least partially controls the power on the crawlertype track on each side of the machine. By pulling back on the lever that controls the left side, for instance, it cuts down the power on that side and causes the tractor to swing to the left. By stepping on the brake at the same time, the tractor could be swung or steered to the left more sharply and more quickly. The same process would apply to the right side by operating the right lever and brake. The power could be entirely cut off or disengaged by using the main lever.

On that date of April 20, 1959, and for some time prior thereto, the seals on the transmission on the tractor were damaged and allowed oil to drip onto the brakes, particularly on the left side. When considerable oil got on the brake bands, they lost their braking power, and it was necessary that it be washed off with gasoline before the brakes would function properly again. There was a plug in the bottom of each of the brake wells through which the gasoline could be let out after it was used to cut the oil off the brakes. If those plugs were left open, the oil could not accumulate enough to affect the brakes seriously, but with the plugs out, dirt and dust were allowed in, which would cause serious damage to the brakes bands.

About 5 p. m. on April 20, 1959, the plaintiff was driving around the field at about 5 miles per hour, dragging the disc behind the tractor. He was partially turned to watch the operation of the disc, as was customary. He claims that he glanced forward just as the left track of the tractor was about to strike a rock a foot or more in height. He stepped on his brake and pulled the left lever in an attempt to center and pass over the rock; but he discovered that he had no brake, and the tractor failed to respond. The left tread struck the rock with considerable force, and the plaintiff was thrown around in the seat and his back injured.

He returned to the home place shortly thereafter, reported to the defendant that he was injured and was advised to and did go to a doctor in Pendleton the next day.

The case was tried before a jury in the circuit court of Umatilla county. The defendant moved for a directed verdict, which was denied. The jury returned a verdict for the plaintiff for $25,000 general damages and $4,624.94 special damages. The defendant then moved for judgment not withstanding the verdict and for a new trial, both of which were denied; hence, this appeal.

The principal question to be determined is whether the case comes under the provisions of the Employers' Liability Act of Oregon.

The first assignment of error is:

'The trial court erred in failing to allow the defendant's motion for a directed verdict and judgment n. o. v., on the ground that the case was not properly maintainable under the Employer's Liability Law.'

It is the defendant's theory that the plaintiff's work did not involve risk and danger and the the trial court should have so determined as a matter of law and dismissed the case on the motion for directed verdict.

We are faced first with the question of deciding the proper method of determining this question of risk and danger. Should it be applied to the general farming occupation of the plaintiff, or should it be applied to and decided on the basis of the work and labor actually being performed by the plaintiff at the time of the accident?

Many of the recent Oregon cases have passed upon this question, and we hold that it should be and is the rule in this state that the question of whether risk and danger are involved is determined by the specific thing or work being done by the employee at the time of the injury rather than the general name of or general type of work the employee was originally hired to do. Barker v. Portland Traction Co. 180 Or. 586, 173 P.2d 288, 178 P.2d 706; Williams v. Clemens' Forest Prod., Inc., 188 Or. 572, 216 P.2d 241, 217 P.2d 252; Wells v. Nibler, 189 Or. 593, 221 P.2d 583; McLean v. Golden Gate Hop Ranch, Inc., 195 Or. 26, 244 P.2d 611; Snyder v. Prairie Logging Co., Inc., 207 Or. 572, 298 P.2d 180.

Some of the above cases hold that the work engaged in did not involve risk and danger, and some hold that it did; but they are all authority for the principle that it is the specific work engaged in when injured that controls in determining the question of risk and danger, rather than the general name or character of the original employment.

It would seem anomalous that an employee working on a farm and driving a D-6 tractor drawing a farm disc or even a log for domestic wood use, who was injured by reason of some defect in the tractor, would be governed by a different rule than the same employee would be if he were employed by a commercial logging operator and was injured while driving the same tractor, with exactly the same defect, while drawing the same disc for the purpose of improving a logging road, or drawing the same log for commercial purposes, rather than for domestic use as wood. We cannot say that simply because the work was incidental to farming, it did not involve risk and danger.

The defendant also contends that the facts show that the actual work being performed in this case did not involve inherent risk and danger and should be so declared by the court as a matter of law and the case dismissed as not coming under the Employers' Liability Act. The defendant cites Hoffman v. Broadway Hazelwood, 139 Or. 519, 10 P.2d 349, 11 P.2d 814, 83 A.L.R. 1008. That was a case where the plaintiff-employee slipped on the floor of the bakery department. The restaurant was held not 'a work shop' by this court, and under the facts there was no question to be submitted to the jury, as the work did not involve risk and danger. In that same case the court did say:

'* * * If it were a matter upon which reasonable minds might differ, it would be a question of fact for the jury to determine.' 139 Or. at page 524, 10 P.2d at page 351.

Defendant next cites Ferretti v. Southern Pacific Co., 154 Or. 97, 57 P.2d 1280. This case did not involve defective machinery or appliances, negligent operation, or failure to provide a safe place to work. It was based primarily on the claim that the work to be performed was beyond the particular employee's physical capacity. This case also holds that ordinarily whether work involves risk and danger is a question of fact for the jury.

Williams v. Clemens' Forest Prod., Inc., supra; Barker v. Portland Traction Co., supra; and Wells v. Nibler, supra, all hold to the same general rule that ordinarily the question of whether there is risk and danger is a jury question, except where the court can say from the facts, as a matter of law, that risk and danger are not involved. Then it is a question of law for the court. The question of risk and danger is determined by the court only in those cases where the facts are all one way and reasonable minds could not disagree. Ordinarily it is a question of fact for the jury. Willamette L. J., Vol. 1, No. 1, p. 95, Application of the 'and generally' Clause: 'Work Involving a Risk or Danger'; Poullos v. Grove, 84 Or. 106, 164 P. 562; McCauley v. The Willamette, 109 Or. 131, 215 P. 892; Hale v. Electric Steel Foundry Co., 183 Or. 275, 191 P.2d 396, 192 P.2d 257, 986; Snyder v. Prairie Logging Co., Inc., supra.

The trial court properly submitted the case to the jury on the theory of the Oregon Employers' Liability Act and properly left to the jury the question of whether the work involved risk and danger.

The defendant assigns as error No. 2:

'The Trial Court erred in denying the motion for a directed verdict and judgment n. o. v. on the ground that the plaintiff was barred in his action by the Foreman Defense Rule, ORS 654.315.'

ORS 654.315 provides as follows:

'The owners, contractors, subcontractors, foremen, architects or other persons having charge of the particular work, shall see that the requirements of ORS 654.305 to 654.335 are complied with.'

This Foreman's Defense Rule and vice-principal rule has been passed upon, thoroughly and fully explained and discussed by this...