Schaedler v. Columbia Contract Co.

• Decision Date: 14 October 1913
• Citation: 67 Or. 412,135 P. 536
• Parties: SCHAEDLER v. COLUMBIA CONTRACT CO. [d]
• Court: Oregon Supreme Court

135 P. 536

67 Or. 412

SCHAEDLER v. COLUMBIA CONTRACT CO. ^[d]

Supreme Court of Oregon

October 14, 1913

Department 1.

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Action by Olive Mae Schaedler against the Columbia Contract Company. Judgment for the plaintiff, and defendant appeals. Affirmed.

This is an action to recover damages for a personal injury. The facts are that the defendant, a corporation, is a dealer in sand gravel, and crushed rock, which material it transports on the Columbia and Willamette rivers to Portland by barges that are towed by steamboats. The defendant owns at that city on the east side of the Willamette river a wharf, the deck of which rests upon piling driven into the ground. At the south end of the wharf is an incline extending westerly from the grade of a street to a line a little above ordinary low water. Beneath the flooring of the wharf is a walk made of three planks each 12 inches wide, resting upon joists that are spiked to the piling. The south end of the path is connected with the incline, and extends northerly parallel with and near the west side of the wharf. The plaintiff on September 12, 1911 was in the defendant's employ as a cook on one of its steamboats, which tug, reaching Portland about 10 o'clock p.m. of that day, was made fast to the side of a barge, which vessel was fastened to the side of another barge, and the latter was tied up to the left side of the wharf. Soon after the steamboat landed, the plaintiff, in order to secure some clean clothing, left the tug, crossed the decks of the barges, ascended a ladder at the west side of the wharf to the plank walk, along which she passed to the incline, and thence to the street, where she took a car to the house of a family with whom she made her home. Having obtained the required wearing apparel, and desiring to board the steamboat so as to prepare an early breakfast for the crew, the plaintiff returned to the wharf a little after midnight, and attempted to retrace the course taken when leaving the vessel; but, owing to an insufficiency of light beneath the wharf, she passed the ladder, and going farther north stepped into an opening in the walk, made by removing a piece of one of the planks, and falling upon her side was injured.

The complaint details the facts, a brief statement of which are hereinbefore set forth, and alleges that the defendant negligently maintained a plank walk, more than 20 feet above the ground, without keeping up along the margin of the way a handrail or other protection which could have been used without impairing the efficiency of the walk, and that in consequence of such carelessness the plaintiff was hurt to her damage, etc.

The answer denied the negligence alleged, and for separate defenses averred in substance that the plaintiff assumed the risk causing the hurt, which hazard was incident to her employment, and that the injury of which she complained was the result of her contributory negligence. The reply controverted the allegations of new matter in the answer and, the cause having been tried, the jury found specially that by the exercise of reasonable care the plaintiff could not have seen the hole into which she fell. The general verdict was in her favor in the sum of $5,146.50, and, judgment having been rendered thereon, the defendant appeals.

A.L. Clark, of Portland (Wilbur, Spencer & Dibble, of Portland, on the brief), for appellant.

J.W. Westbrook, of Portland (Westbrook & Westbrook, of Portland, on the brief), for respondent.

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

The court told the jury that, though the facts set forth in the complaint stated a case within the provisions of the Employers' Liability Act, the evidence, however, failed to establish such averment. The jury were further instructed in effect that the plaintiff's contributory negligence, if they should find her guilty thereof, was not a bar to the maintenance of the action, but was a circumstance which they should consider in the reduction of damages to which she might otherwise be entitled. An exception having been taken by defendant's counsel to the latter instruction, it is contended that an error was committed in so charging the jury.

The substance of the language thus complained of is to be found in section 6 of the act to which the court referred. Laws Or. 1911. p. 16. The parts of that statute deemed to be involved herein will be quoted, to wit:

Section 1: "All owners, contractors, subcontractors corporations or persons whatsoever, engaged in the construction, repairing, alteration, removal or painting of any building, bridge, viaduct, or other structure, or in the erection or operation of any machinery, or 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 all scaffolding, staging, false work or other temporary structure shall be constructed to bear four times the maximum weight to be sustained by said structure, and such structure shall not at any time be overloaded or overcrowded; and all scaffolding, staging or other structure more than twenty feet from the ground or floor shall be secured from swaying and provided with a strong and efficient safety rail or other contrivance, so as to prevent any person from falling therefrom, and all dangerous machinery shall be securely covered and protected to the fullest extent that the proper operation of the machinery permits, and all shafts, wells, floor openings and...