Mackay v. Commission of the Port of Toledo

• Decision Date: 19 October 1915
• Citation: 77 Or. 611,152 P. 250
• Parties: MACKAY v. COMMISSION OF THE PORT OF TOLEDO.
• Court: Oregon Supreme Court

152 P. 250

77 Or. 611

MACKAY v. COMMISSION OF THE PORT OF TOLEDO.

Supreme Court of Oregon

October 19, 1915

Department 2.

Appeal from Circuit Court, Lincoln County; L. T. Harris, Judge.

Action by William Mackay against the Commission of the Port of Toledo, a corporation.Judgment for plaintiff, and defendant appeals.Affirmed.

Given InstructionNo. 32 was as follows:

"If you find that the plaintiff is entitled to a verdict, it will be then your duty to assess the damages plaintiff has sustained by reason of the injury, and you have the right when assessing the damages to take into consideration the bodily pain and suffering that plaintiff has already undergone and will hereafter suffer on account of the injuries received, also the loss of power to perform labor and duties which he would be called upon to perform in his condition in life and the impairment of his capacity to earn money, and if, after considering all these elements of damages, you conclude that the plaintiff is entitled to recover, it is your duty to determine the sum that, in your judgment, will compensate plaintiff for injuries he received, not exceeding the amount asked for in the complaint."

This is an action for damages for personal injuries.Defendant is a corporation organized under and pursuant to the provisions of sections 6114 to 6125, inclusive, L. O. L.The complaint alleges, in substance, that defendant at the time of the alleged injuries owned and operated near Toledo, in Lincoln county, a certain dredger used in deepening the rivers and bays in said vicinity; that on said date, and some time prior thereto, plaintiff was employed by defendant on and about said dredger; that the work involved a risk or danger to him as an employé and was a hazardous occupation; that while he was so employed defendant and its duly authorized agent on April 19, 1913, ordered him to prepare the dredger for operation on April 21, 1913, to fill the boiler by connecting the same by means of a hose with a hydrant on the dock at which the dredger rested, and to start a fire in the engine room thereof; that at the proper time for performing these duties the dredger was about ten feet below the hydrant from which he was expected to procure the water for filling the boiler; that defendant provided him with a hose and ladder with which to reach the hydrant; that he placed the ladder in a careful and prudent manner and climbed the same for the purpose of examining the threads on the nozzle of the hydrant in order to determine which end of the hose to carry up; that the ladder was defective, in that it was old, worn, and one side thereof was broken and shorter than the other; that the deck of the dredger was wet and slippery; that without any negligence on his part the ladder slipped and fell, throwing him against an iron chock which was a permanent fixture upon the deck of the dredger, thereby causing the injury of which he complains.There are other allegations tending to bring the action within the provisions of the Employers' Liability Act.The defendant answered, denying generally the allegations of the complaint, and pleading affirmatively that defendant is a corporation organized and acting exclusively for governmental purposes and the public good, and without profit to itself or any one else; that at all times since organization it has been employed in improving the channel of the Yaquina river and its tributaries for purposes of navigation, for the public good, and without profit; that any injuries received by plaintiff were so received while defendant was using the dredger for such governmental purposes; that plaintiff was employed at the time as a watchman only, for the purpose of guarding the dredger from injury by fire or otherwise; that defendant had provided a boat for the purpose of enabling its employés to go to and from the dredger to the dock, which constituted a safe and efficient means therefor; that the ladder whereby plaintiff was hurt was placed upon the dredger by the plaintiff and his coemployés without the knowledge or consent of defendant, and was used by plaintiff and his fellow servants for the sole purpose of accommodating their personal wishes and desires.Then follow allegations of contributory negligence and assumption of risk.A demurrer was interposed to the first affirmative defense, which sets up the contention that defendant was a municipal corporation at the time of the alleged injury employed in widening and deepening the channel of the Yaquina river and its tributaries as a public and governmental duty, and therefore not liable for acts of negligence.The demurrer was sustained, and a reply was filed consisting of a general denial.From a judgment for plaintiff, this appeal is taken.

J. K Weatherford, of Albany (Weatherford & Weatherford, of Albany and Hawkins & McClusky, of Toledo, on the brief), for appellant.Arthur Clarke, of Corvallis (McFadden & Clarke, of Corvallis, and J. F. Stewart, of Toledo, on the brief), for respondent.

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

We shall consider the various assignments of error in the same order in which they are discussed in appellant's brief.

Assignment numbered 10 involves a construction of the Employers' Liability Act(Laws 1911, p. 16), since defendant contends that climbing a ladder does not involve the use of machinery or any of the enumerated employments mentioned in section 1 of the law, and that therefore the acts complained of do not fall within the scope of the statute, and that it was entitled to the directed verdict for which it asked.Attention has been directed so frequently to the final clause of section 1 of the Employers' Liability Act that it would seem to be unnecessary to reiterate its terms; but for the purpose of this discussion we may say that it reads thus:

"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, 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."

Commenting upon this clause, in the case of Davis v. Carlton Lumber Company,151 P. 652, Mr. Justice Bean says:

"It may now be regarded as settled by the decisions of this court that the general clause of the law quoted above is not restricted to the particular persons and acts mentioned in the first part of the section,

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