Saylor v. Enterprise Elec. Co.

• Decision Date: 06 February 1923
• Citation: 106 Or. 421,212 P. 477
• Parties: SAYLOR v. ENTERPRISE ELECTRIC CO.
• Court: Oregon Supreme Court

212 P. 477

106 Or. 421

SAYLOR v. ENTERPRISE ELECTRIC CO.

Supreme Court of Oregon

February 6, 1923

In Banc.

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

Action by Grace M. Saylor against the Enterprise Electric Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Carl Saylor was killed by electricity when a hay derrick which he was moving came in contact with an uninsulated high power transmission line maintained by the defendant, the Enterprise Electric Company, a corporation, Grace M. Saylor, who was his wife at the time of his death, commenced this action in an attempt to recover damages under the provisions of the Employers' Liability Act (Laws 1911, p. 16). The circuit court sustained a demurrer to the amended complaint. A judgment in favor of the defendant for its costs and disbursements was entered, and the plaintiff refused to plead further. The plaintiff appealed.

The facts must, of course, be assumed to be as they are related in the amended complaint. On the east and adjoining the town site of Joseph is an irrigated agricultural district known as "Upper Prairie Creek Country." Measured from the west to the east the district is 4 or 5 miles wide and from north to south it is between 5 and 10 miles long. Upon and over all of the district hay has been raised in large quantities during the last 15 years. In the work of harvesting the hay the farmers during all of the period mentioned used movable hay derricks, and, as "the defendant well knew," it was the custom of the farmers to move their hay derricks from field to field and from farm to farm, through gateways and over public roads.

F. D McCully owned two ranches: One is located within the irrigated district mentioned, and is distant about 1 1/2 miles east of Joseph; the other is north of Joseph, and we infer that it is within the irrigated district. For convenience we shall refer to the ranch which is east of Joseph as the east ranch, and to the other as the north ranch.

A county road extends along the north side of the east ranch. A gateway is located about 200 feet northeast of the dwelling house on the east ranch. It was necessary for the decedent and his predecessors to make use of the gateway as a place of egress from and ingress to the east ranch.

The defendant maintains a plant at Joseph where it generates electricity, and the electricity is transmitted and sold to farmers living in the irrigated district. The electricity is transmitted in the customary way over wires attached to and suspended from a line of poles. One of the transmission lines is maintained along the county road extending along the north side of the east ranch. This transmission line was suspended over and above the gateway, and at that point the line was not more than 19 feet above the ground. Electricity of "a great and dangerous voltage" was transmitted along the line. The wire was not insulated.

The decedent had been engaged in harvesting on the east ranch and had been using a movable hay derrick of the same kind as other hay derricks generally used in that district. He undertook to transport the derrick from the east ranch to the north ranch, where he intended to use it in harvesting hay. When the derrick was being moved through the gateway a wire or steel cable, composing a part of the derrick, came in contact with the transmission line, thus deflecting the electricity from the transmission line to and through the hay derrick and to Carl Saylor, causing his death.

The plaintiff alleges that it was the duty of the defendant either to have suspended the line higher or to have insulated it, and that the defendant could have done either one or the other "without reducing the effectiveness of the wires in transmitting electricity of a great and dangerous voltage," and that by so doing could have insured "the safety of the life and limb of all persons engaged in work about said line."

Daniel Boyd, of Enterprise, for appellant.

A. S Cooley, of Enterprise, for respondent.

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

The question for discussion is whether the facts bring the instant case within the embrace of the Employers' Liability Act. We are not inquiring whether the defendant was or was not guilty of culpable negligence according to the standards fixed by the rules of common law. If it be assumed for the purposes of discussion that the defendant is chargeable with culpable negligence within the rules of the common law, the plaintiff must nevertheless fail in this action, unless the provisions of the Employers' Liability Act apply to the facts disclosed by the record, because she is suing in her individual capacity. If the Employers' Liability Act applies to the facts, the plaintiff is the person entitled to sue. If the statute does not apply and if the defendant is liable in damages for common-law negligence, the representative of the estate of the decedent must sue. If the Employers' Liability Act does not embrace a fact situation like the instant case, the demurrer was properly sustained, even though it is assumed that the defendant was guilty of negligence according to common-law standards.

The decedent was not an employé of any employer at the time of his death. He was on a mission of his own. He was not working for any other person. He was entering upon the county road, a public place, a place where he and the public had a right to be, a place where it was to be expected that the public would be. It is contended that he was engaged in work, and that therefore he was a workingman, and as such belonged to the class for whose protection the statute was passed. Although it is conceded that he was not working on the wire, it is insisted that he was engaged in work about the wire. The plaintiff does not claim that the act was intended to protect every member of the public, but she does insist:

"That it was intended to protect any member of the public who might be working 'or engaged in any work,' upon or about electric wires carrying a high and dangerous voltage."

The defendant argues that the statute was designed to cover none but employés.

It will facilitate the discussion if we again relate the history of the Employers' Liability Act, and once more copy the statute in full. The act was adopted by the people in the exercise of the power of the initiative. The petition was circulated under the direction of the Oregon State Federation of Labor, and was filed with the Secretary of State by J. F Cassidy, Secretary of the Oregon State Federation of Labor. Upon the authority of section 5, chapter 226, Laws 1907, the Secretary of State transmitted a copy of the measure to the Attorney General, with a request that the latter prepare a ballot title, and accordingly the Attorney General did prepare a ballot title. J. F. Cassidy was notified of the form prepared by the Attorney General, and it was apparently satisfactory, for it was printed upon the ballots submitted to the electorate. Through its secretary, J. F. Cassidy, the Oregon State Federation of Labor filed with the Secretary of State an argument in support of the measure. The ballot title prepared by the Attorney General, argument submitted by the Oregon State Federation of Labor, and the proposed act were printed in the Voters' Pamphlet as required by law, and a copy of that pamphlet was sent to every registered voter in the state. The following is a copy of the ballot title and argument in favor of the measure as they were printed in the Voters' Pamphlet:

"Argument (Affirmative) Submitted by Oregon State Federation of Labor,

"In favor of the measure designated on the official ballot as follows:

"Proposed by Initiative Petition.

"A bill for a law requiring protection for persons engaged in hazardous employments, defining and extending the liability of employers, and providing that contributory negligence shall not be a defense. Vote Yes or No.

"330. Yes.

"331. No.

"Argument in Favor of the Above Measure.

" A Bill for the Protection of Laborers in Hazardous Employments.

"This is the call of the plain people to the plain people for relief. Oregon is making a name for itself as the best home for the immigrant because of its political reforms and the powers which the people have taken into their own hands, and yet Oregon stands backward and almost alone in her failure to recognize that the injury or death of a workman is as much a part of the conduct of the business as the bursting of a boiler or breakage of the machinery and to prevent the death or injury of the workman should be as much a part of the cost of the business as the protection of machinery or replacing old with new. The iron machinery is insured and guarded from injury in every way, but the human machinery is, in fact, too cheap to be worth protecting. Every form of capital receives the aid of special privilege laws; land held in vacancy, money authorized to be issued by certain institutions only; and manufacturers are protected by tariff laws. The only factor in the production of social wealth which is not protected in any sense whatever is labor. Babies are born without limit and must live, and there are always plenty waiting to take the dead man's shoes. This bill does not ask so arbitrary and artificial a thing as that the laborers' wages be protected and guaranteed by law but it does ask that the employer be compelled to use diligence in protecting the laborer as to his life and limb, while earning wages; that a safe place in which to work be provided and that ropes, chains, beams, machinery, etc., be properly tested before the workman is asked to risk his life with them. Surely this is a reasonable request. Ten per cent. of electrical workers are killed. It is a more hazardous employment than war. The

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