Ludwig v. Zidell et al.

• Court: Oregon Supreme Court
• Writing for the Court: Kelly
• Citation: Ludwig v. Zidell et al., 167 Or. 488, 118 P.2d 1073 (Or. 1941)
• Decision Date: 18 November 1941
• Parties: LUDWIG <I>v.</I> ZIDELL ET AL.

167 Or. 488

118 P.2d 1073

LUDWIG

v. ZIDELL ET AL.

Supreme Court of Oregon.

Argued November 6, 1941.

Reversed November 18, 1941.

Workmen's compensation — Employers' Liability Act

1. Where, in action under Employers' Liability Act for injuries sustained by employee, employers did not claim that they were subject to provisions of Workmen's Compensation Act, in determining whether an order of nonsuit should have been made, neither contributory negligence, knowledge of danger, nor assumption of risk by plaintiff could be considered.

Master and servant — Employers' Liability Act

2. In determining employer's liability for injuries to employee whose hand was caught by revolving knuckle in attempting to remove a piece of metal from mechanism of motor-driven shears, whether installation of a protective guard or housing which would have prevented accident could have been made without impairing efficiency of the machine, within Employers' Liability Act requiring employers to use every device and precaution for protection of employees limited only by necessity for preserving efficiency of the structure or machine, is a "question of fact".

Master and servant — Employers' Liability Act

3. In determining employer's liability under Employers' Liability Act for injury to employee whose hand was caught by revolving knuckle in attempting to remove a piece of metal from mechanism of motor-driven shears, whether employer's failure to have installed a protective guard or housing was proximate cause of injury is a "question of fact".

Master and servant — Employers' Liability Act

4. In action under Employers' Liability Act for injuries to employee whose hand was caught by revolving knuckle in attempting to remove a piece of metal from mechanism of a motor-driven shears, whether employer's failure to install protective covering or guards about the machine was proximate cause of injury was for jury.

Master and servant — Employers' Liability Act

5. Under Employers' Liability Act, "proximate cause" of an injury is not meant the last act of cause or nearest act to the injury, but such act of commission or omission violating or failing to comply with provisions of the act, as actually aided in producing the injury as a direct and existing cause, and it need not be the sole cause, but it must be a concurring cause such as might reasonably have been contemplated as involving the result under the attending circumstances.

Evidence — Employers' Liability Act

6. In action under Employers' Liability Act for injuries to employee whose hand was caught by revolving knuckle in attempting to remove a piece of metal from mechanism of motor-driven shears, question propounded to expert witness whether it was practical without interfering with operation of machinery to cover the knuckle and machinery with which it was connected was proper as against contention that question called for an "opinion" on a subject within province of jury.

  See 35 Am. Jur. 619
                  39 C.J., Master and Servant, § 413
                

Before KELLY, Chief Justice, and BELT, BAILEY, LUSK, RAND, ROSSMAN and BRAND, Associate Justices.

Appeal from Circuit Court, Multnomah County.

JAMES W. CRAWFORD, Judge.

Action by Fred Ludwig, based upon the Employers' Liability Act, against S. Zidell and another, copartners doing business under the name and style of Zidell-Steinberg Company, who were plaintiff's employers and who had not come under the Workmen's Compensation Act, for damages on account of personal injuries sustained by plaintiff in attempting to remove a piece of metal from the mechanism of motor-driven shears. From an order of involuntary nonsuit, plaintiff appeals.

REVERSED.

Arthur I. Moulton, of Portland (Moulton & Davis, of Portland, on the brief), for appellant.

W.A. Palmer, of Portland (E.L. McDougal and Randall S. Jones, both of Portland, on the brief), for respondents.

KELLY, C.J.

At the time plaintiff sustained the injury for which he seeks to recover, namely, on December 16, 1939, he was, and for about three weeks had been, in the employment of defendants operating a machine known as the shears which consisted of two cutting blades approximately two feet long, powered by a gasoline motor and used in cutting scrap metal.

It is alleged in plaintiff's complaint that —

"In connection with said machinery, defendants had and operated by power a certain knuckle revolving with an eccentric motion, so devised that it was extremely hazardous and dangerous to any person coming in contact therewith, and defendants at said time had carelessly and negligently failed and neglected to cover and protect the said knuckle by guard or covering to prevent pieces of metal from dropping into and near said knuckle, and to prevent defendants' employes from coming in contact therewith."

It is also alleged in plaintiff's complaint that —

"It was practicable without impairing the efficiency of defendants' said machinery for defendants to have used the care and precaution of enclosing the aforesaid power driven knuckle with a guard and covering thereover and around the same so as to protect defendants' employes from coming in contact therewith, but defendants carelessly and negligently failed to use said or any care or precaution to protect their employes from said knuckle."

1. No claim is made by defendants that they were subject to the provisions of the Workmen's Compensation Act. For that reason in determining whether an order of nonsuit should have been made neither contributory negligence, knowledge of the danger nor assumption of the risk by plaintiff may be considered.

On this phase of the case, but two questions are relevant: (1) Is there substantial testimony tending to prove that defendants failed to comply with the provisions of the Employers' Liability Act as alleged in plaintiff's complaint; and (2) if so, is there substantial testimony tending to prove that such violation of the Employers' Liability Act on defendants' part was the proximate cause of plaintiff's injury?

Defendants insist that there is no testimony tending to show a violation of the Employers' Liability Act by them; and also insist that, if any such testimony is in the record, there is nothing tending to prove that a violation of said act was the proximate cause of plaintiff's injury.

Tersely stated, defendants' position is that plaintiff himself was negligent in placing his hand in proximity to the revolving knuckle mentioned in plaintiff's complaint; and that plaintiff's alleged negligence in this regard was the sole proximate cause of plaintiff's injury.

In dealing with the question, whether there is substantial testimony tending to show that defendants failed to comply with the Employers' Liability Act, we are required to bear in mind the provisions of that act with respect to devices, care and precautions required of owners, contractors, etc., for protection and safety of employes in dangerous employments; and we should have in mind also the character of the machinery in suit, the duty of plaintiff in operating it, and the nature of the protection afforded plaintiff.

We quote the pertinent provision of the statute in this regard:

* * * "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." Vol. 7, O.C.L.A. pp. 596, 597, Section 102-1601.

As stated, the machine was known as the shears. Taking the description from plaintiff's testimony, the machine consisted of two cutting blades which met each other in operation. One blade was stationary; the other moved up and down to meet it. The blades were about two feet long. Pieces of metal were put between the two blades for cutting. The lower blade was about two and a half or three feet above the platform on which the machine stood. It was driven by a gasoline motor which was belted to the gearing, a crank and gear shaft which moved the upper blade up and down. The pulley on the gasoline engine was about six or seven feet from the pulley operated by the belt to the machine end. The machine was set up on a platform consisting of two timbers long enough to accommodate both the motor and the shears. The upper blade was connected to and operated by a connecting rod which stood approximately perpendicular and ran down to a knuckle or crank at the bottom. The crank at the bottom was designed to have a circular motion to produce an up and down motion on the connecting rod between the end of the shears and the crank. The connecting rod was approximately two and a half feet long. On the downward stroke of the lever, that worked the shears, it was just about level with the upper part of the platform. There was a place hollowed out in the platform about three or four inches deep; hewed out of the wood to permit the crank to turn. In its revolving motion, the crank cleared the bottom of this well by three or four inches. The diameter of the crank was about eighteen inches or more. The shaft had two large gears on each end on each side of the knuckle. Two large gears were attached to the shaft. These gears were about four feet apart. The gear wheels would stand about four feet high and the knuckle was midway between them. The pulley extended from this machine back to the gasoline engine. The pulley was about an eighteen-inch pulley. It had two large flywheels on either side and the pulley connected to one of these flywheels. In between these two large flywheels were small gears that meshed with these large gears, and the large gears revolved the crank and knuckle.

The machine was set up north and south, the...