Clayton v. Enterprise Elec. Co.

• Decision Date: 05 December 1916
• Citation: 82 Or. 149,161 P. 411
• Parties: CLAYTON v. ENTERPRISE ELECTRIC CO.
• Court: Oregon Supreme Court

161 P. 411

82 Or. 149

CLAYTON v. ENTERPRISE ELECTRIC CO.

Supreme Court of Oregon

December 5, 1916

In Banc.

Appeal from Circuit Court, Wallowa County; J. W. Knowles, Judge.

Action by Ella Clayton against the Enterprise Electric Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The plaintiff, as the widow of W. S. Clayton, deceased, brings this action for damages under the Employers' Liability Law against the defendant to recover for the death of her husband, caused by an electric shock which he received while attempting to turn off the power furnished by the defendant to a motor pump operated by one Carl Roe, by whom he was employed. Without quoting the allegations of the complaint it may be stated that on August 5, 1912, the defendant Enterprise Electric Company, a corporation, was engaged in the manufacture, transmission, and use of electricity of a dangerous voltage. At the time one Carl Roe was the owner of a pumping plant on the Wallowa river, a short distance below the town of Enterprise, and was engaged in pumping water from that river to irrigate certain lands situated above the stream. The pumping plant, machinery, and motor for the same were contained in a small lumber building about 9X18 feet. Prior to the date mentioned, under an arrangement with Roe the defendant had connected its wires and transmission system, upon which a dangerous voltage of electricity was being carried, with the motor and machinery of this pumping plant, and had placed thereon certain switches and other apparatus. Plaintiff alleges that the defendant was the owner and controlled and operated the transmission system, and the wires and appliances by which the currents of electricity were carried into and connected with the motor and pumping machinery, and was engaged in furnishing the pumping plant with electricity, conveying the same to the motor by the wiring, switches, and apparatus. Omitting the part of the complaint not relied upon at the trial, plaintiff claimed that the defendant was negligent in the following respects:

"(1) That the defendant, being the owner of and controlling and operating the transmission system and the wires and appliances by which the electric currents were carried into and connected with the motor in the pumping plant owned by Carl Roe, carelessly and negligently failed to cover and inclose the dangerous machinery, switches, and wiring by means of which said electricity was connected with said motor.

"(2) That the defendant, being the owner of and controlling and operating said transmission system and said wires and appliances by which said electricity was conveyed from said transmission system to said motor, carelessly and negligently failed thoroughly, effectively, and perfectly to insulate said wiring, switches, and apparatus. * * *

"(5) That the defendant carelessly and negligently used an insufficient and dangerous switch, the blades of which were not insulated, and negligently failed to use a fully insulated switch at a point where the public and the employés of Roe were likely to come in contact with the same, though a fully and completely insulated switch was practicable to be used without interfering with the efficiency of the pumping plant."

On the day mentioned, while in the employ of Carl Roe, W. S Clayton, deceased, was required to attend to the operation of the pumping plant, turn off and on the electric power, set the plant in operation, and stop the same again as required by the business. In the afternoon of that day it became his duty to turn off the power, and in order to do so he entered the building and turned off the electricity from the motor by opening the switch and disconnecting the wiring and transmission plant of the defendant with the same. While attempting this, by reason of the negligence of the defendant, as set forth, he received a violent shock of electricity from the wiring, switches, and apparatus of the defendant and the high and dangerous current, voltage, and amperage of electricity passed through his body killing him.

The answer of defendant denied the allegations of negligence contained in the complaint and affirmatively set forth contributory negligence on the part of Clayton. It also alleged affirmatively that at the time of the accident the defendant was not the owner of, did not have the right to, and did not exercise any supervision, control, or direction over, the interior of the pumping plant or building, or over any of the machinery, switches, apparatus, or appliances installed therein, and that it owed no duty to plaintiff's deceased. The reply put in issue the affirmative matter of the answer, except the allegation that W. S. Clayton was not in the employ of the defendant at the time of his death. The cause was tried before a jury, resulting in a verdict in favor of plaintiff for the sum of $5,000, upon which judgment was entered, from which judgment this appeal is prosecuted.

Rufus A. Leiter, of Portland (A. S. Cooley, of Enterprise, and Griffith, Leiter & Allen, of Portland, on the brief), for appellant. Daniel Boyd, of Enterprise, and A. S. Bennett, of The Dalles, for respondent.

BEAN, J. (after stating the facts as above).

The defendant raises but three points upon this appeal, and relies upon three assignments of error: (1) Overruling the defendant's demurrer to plaintiff's complaint; (2) denying plaintiff's motion for a nonsuit; (3) refusing to instruct the jury to return a verdict for the defendant. These points may be considered together. The main question involved is presented as a new one. It is contended on the part of the defendant: First, that the Employers' Liability Law applies only to the relationship of employer and employé, and does not create any right of action in a member of the general public; second, that the title of the act is not broad enough to include protection to members of the general public, and if it is, that subject is not expressed in the title; and third, that section 20 of article 4 of the state Constitution was not complied with, and the act to that extent is not constitutional, within the rule announced in State v. Richardson, 48 Or. 309, 85 P. 225, 8 L. R. A. (N. S.) 362 .

The title of the Employers' Liability Law (General Laws 1911, p. 16) is as follows:

"An act providing for the protection and safety of persons engaged in the construction, repairing, alteration, or other work, upon buildings, bridges, viaducts, tanks, stacks and other structures, or engaged in any work upon or about electrical wires, or conductors or poles, or supports, or other electrical appliances or contrivances carrying a dangerous current of electricity; or about any machinery or in any dangerous occupation, and extending and defining the liability of employers in any or all acts of negligence, or for injury or death of their employés, and defining who are the agents of the employer, and declaring what shall not be a defense in actions by employés against employers, and prescribing a penalty for a violation of the law."

That part of the act necessary to here note reads thus:

Section 1: "All owners, contractors, subcontractors, corporations or persons whatsoever, engaged * * * in the manufacture, transmission and use of electricity, or in the manufacture or use of any dangerous appliance or substance, shall see that all metal, wood, rope, glass, rubber, gutta percha, or other material whatever, shall be carefully selected and inspected and tested so as to detect any defects. * * * And in the transmission and use of electricity of a dangerous voltage full and complete insulation shall be provided at all points where the public or the employés of the owner, contractor or subcontractor transmitting or using said electricity are liable to come in contact with the wire, * * * 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 employés 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. * * *"

Section 4: "If there shall be any loss of life by reason of the neglects or failures or violations of the provisions of this act by any owner, contractor, or subcontractor, or any person liable under the provisions of this act, the widow of the person so killed, his lineal heirs or adopted children," etc., "shall have a right of action without any limit as to the amount of damages which may be awarded."

From the language of the statute, which makes three special references to the safety of the general public, or the public, it seems there can be no doubt but that the provisions of the law are intended to safeguard members of the public from injury by coming in contact with wires or appliances owned and controlled by an electric company and used in the transmission and application of electricity of a dangerous voltage. It is a cardinal principle of statutory construction that, where the language of the lawmakers is plain and its intent clear, such meaning shall be given effect. That the provisions of the Employers' Liability Law are more frequently applied to affairs between employer and employé does not lessen its force, so far as applicable, in prescribing a rule of conduct for those engaged in dealing with such a dangerous and subtle element as electricity, in order to increase the safety of those who in the performance of their duty are liable to come in contact with the agencies employed in generating and conveying such current, even though such persons may not be in the immediate employ of such manufacturer or person conveying electricity.

The act first enjoins upon the owner, corporation, or person engaged in the manufacture,...