Cameron v. Pacific Lime & Gypsum Co.

• Court: Oregon Supreme Court
• Writing for the Court: EAKIN, J. (after stating the facts as above).
• Citation: Cameron v. Pacific Lime & Gypsum Co., 73 Or. 510, 144 P. 446 (Or. 1914)
• Decision Date: 24 November 1914
• Parties: CAMERON v. PACIFIC LIME & GYPSUM CO.

144 P. 446

73 Or. 510

CAMERON v. PACIFIC LIME & GYPSUM CO.

Supreme Court of Oregon

November 24, 1914

In Banc.

Appeal from Circuit Court, Baker County; Gustav Anderson, Judge.

Action by Roy E. Cameron against the Pacific Lime & Gypsum Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

This is an action for personal injuries. The defendant was the owner and operator of a plaster mill for milling a product of gypsum rock; the rock being subjected to great heat and reduced to a powder. Machinery is operated in a room about 100 feet long, and the gypsum is carried from the hot-pits by means of conveyors constructed about 18 inches from the floor. A steel spiral attached to a shaft inclosed in a steel case removes the gypsum from said hot-pits through openings regulated by sliding doors. Plaintiff's labor consisted in attending said hot-pits and the conveyor. At the time of the injury his foot and leg were caught by said revolving conveyor and crushed, bruised, and burned, whereby he lost the limb. It is alleged in the complaint that said conveyor should have been covered and made safe for plaintiff's working thereat; that it was open and exposed and involved great risk and danger to him. The action was tried by a jury and a verdict rendered for plaintiff in the sum of $12,888. From a judgment thereon defendant appeals.

McNary J., dissenting.

John L Rand, of Baker, and Wm. J. Claassen, of Seattle, Wash., for appellant. McColloch & McColloch, of Baker, for respondent.

EAKIN J. (after stating the facts as above).

At the trial defendant moved the court for an order requiring the plaintiff to elect whether he would proceed with the trial under the factory inspection law of 1907 or under the employers' liability law of 1910. This motion was denied by the court, which is assigned as error. The purpose of the factory inspection act (Laws of 1907, p. 302) was primarily intended to effect a safeguard of all dangerous machinery through the inspection thereof by the labor commissioner. A penalty is provided for disregarding its provisions or a violation thereof. It also provides for a liability against the person who neglects to safeguard any machinery or omits to comply with any of the provisions of the act, limiting the liability in such case to $7,500. The act does not expressly provide any new defenses, but eliminates the defense of assumed risk, as decided in Hill v. Saugested, 53 Or. 178, 98 P. 524, 22 L. R A. (N. S.) 634, e v. Chambers Lumber Co., 64 Or. 129, 129 P. 492. The employers' liability law seems to cover some of the same matters provided for in the factory act, namely:

"All owners * * * engaged in the * * * operation of any machinery * * * shall see that * * * all dangerous machinery shall be securely covered and protected * * * and generally, all owners, * * * having charge of, * * * any work involving a risk * * * to the employés * * * shall use every * * * care * * * for the protection * * * of life and limb. * * *"

Evidently the purpose of that act contemplated not only the protection of laborers in construction work, but makes the law broad enough to include laborers in factories and mills wherever machinery is used. Prior to the enactment of the factory inspection act, by section 380, L. O. L., a limitation was placed upon the right of recovery of damages for personal injuries in case of death; but in cases of personal injury not resulting in death the amount of the recovery was unlimited, and remained the rule until the enactment of the factory inspection act of 1907. Section 8 of that act provides:

"Any person, firm, corporation or association who violates or omits to comply with any of the foregoing requirements or provisions of this act, and such violation or omission shall be the approximate cause of any injury to any employé, shall be liable in damages to any employé who sustains injuries by reason thereof; provided, the amount of damages which any one person may recover * * * is hereby expressly limited to the sum of $7,500."

Section 9 provides:

"No action for the recovery of compensation for injury under this act shall be maintained unless notice of the time, place and cause of injury is given to the employer within six months, and the action is commenced within one year from the occurrence of the accident causing the injury."

If the requirements of section 9 are not complied with, then the failure to comply with the requirements of the act cannot be proved as a basis of recovery unless the same facts would be competent under the common law or some other statute; and, if the action is not brought thereunder, the limitation therein provided can have no application. In the employers' liability act the limitation provided by section 380, L. O. L., was expressly removed so that now, when the remedy is at common law or under the employers' liability act, the amount of recovery is unlimited. The employers' liability act specifically enumerates what are to be safeguarded, to wit:

"* * * In the construction * * * or operation of any machinery (the owner) * * * shall see that all * * * material (used) * * * shall be carefully selected; * * * all scaffolding * * * shall be constructed to bear four times the maximum weight to be sustained; * * * all scaffolding * * * 20 feet from the ground * * * shall be secured from swaying; * * * all dangerous machinery shall be securely covered; * * * all shafts * * * shall be enclosed; * * * all machinery * * * shall * * * be provided with a system of communication; * * * and generally, all owners * * * having charge of * * * any work involving a risk or danger * * * shall use every * * * care * * * for the protection * * * of life. * * *"

Thus we see that it not only relates to construction work, but includes mills and factories. It also eliminates the defenses of negligence of fellow laborers, assumed risk, and contributory negligence as a complete defense, although the last may be shown in reduction of damages. The employers' liability act does not in terms repeal the factory inspection act, but so much of it as is inconsistent therewith. In the former the primary purpose of the act was to safeguard dangerous machinery, and the liability provided in section 8 is on account of the neglect of the employer to safeguard any machinery or for using the same after having received notice to guard it. Where the injury is the proximate result of such omission to safeguard, there is liability; but in matters conflicting with the employers' liability act the latter will control. The limitation under the former act can apply only to actions expressly provided for thereunder. See Rogers v. Portland Lumber Co., 54 Or. 390, 102 P. 601, 103 P. 514. In this case the action was expressly brought under the employers' liability act, and the defendant was not prejudiced by the denial of his motion to require plaintiff to elect under which statute he would proceed. Defendant admits in his brief that the action was not brought under the 1907 statute, nor was the complaint sufficient to maintain the action thereunder; and plaintiff's remedy was not exclusively under the common law, as insisted by defendant's counsel, nor could the common-law defenses be urged thereto, they being expressly excluded by the terms of the employers' liability act, the title of which clearly indicates that it is intended to include mills and factories, reading:

"An act

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