Harvey v. Corbett

Mr. Justice Bean

delivered the opinion of the court.

The action is brought under the Employers’ Liability Act. As we understand the law, the guard-rail, which it is alleged the defendant failed to furnish, is required for protection generally and in case of a misstep or accident. It is unnecessary to conjecture as to how many times or under what circumstances the same would have been of service. The jury may have reasonably believed from the evidence that, if there had been a hand-rail available when plaintiff put up his hands and found nothing but a smooth wall, that he would have caught hold of it, saved himself from a fall, and prevented the injury. There was testimony to support such a belief. The statute also requires stag *56 ing when more than 20 feet from the ground or floor to “be secured from swaying.” It is shown by the evidence that in the use of a movable scaffolding like the one employed at the time of the accident it is customary to fasten the same to a building by “tying-in” ropes or wire. The act makes a definite command, both in regard to securing the scaffold from swinging and providing an efficient safety-rail. Therefore the failure to observe the mandate of the law on the part of the owners, contractors or subcontractors, and other persons-having charge of, or responsible for, the work, renders the persons responsible therefor liable for any injury caused by such neglect. The primary purpose of staying such a “boat,” as it is called by the employees, is to prevent its swaying. The manifest increase in the danger that might be caused by a staging swaying, whether tending to precipitate a fall or rendering the fastenings of the structure insecure by wearing or becoming displaced, is not specified in the act and need not be detailed. Suffice it to say that the requirements of the statute should be obeyed.

1. Substitutes not coming within the substantial specifications of the law do not take the place of devices specifically named in the act, nor excuse a noncompliance therewith: McClaugherty v. Rogue River Elec. Co., 73 Or. 135 ( 140 Pac. 64 ). The jury evidently concluded that one or both of the devices called for in the statute would have prevented the catastrophe, and that the want thereof was the proximate cause of the injury. The evidence warrants such a conclusion. It is appropriate for the city to ordain for the safety of workmen, and any rule so made not in conflict with the state law should be heeded (Kalich v. Knapp, 73 Or. 558 ( 142 Pac. 594 ); but certain devices or things re *57 quired by the city ordinance would not serve as a substitute for those which are distinctly directed to be provided by the act. There was therefore no error in the holding of the trial court that the statute controls.

Counsel for defendant requested the court to charge the jury as follows:

“I instruct you, if the scaffold upon which the plaintiff was working was constructed in accordance with an ordinance of the City of Portland which was in full force and effect at the time the plaintiff received his injury, there was no negligence in so constructing said scaffold.”

This requested instruction, in effect, would inform the jury that, if the ordinance was complied with, the lack of a safety rail or fastening to prevent the scaffolding from swaying would not be material. Such is not the statutory mandate. This is not purely a local matter for the city to legislate upon under the Constitution. It is, however, a proper subject for the exercise of the police power of the state by the lawmakers. The statute says that such a structure, when at a certain height, shall be “provided with a strong and efficient safety rail or other contrivance so as to prevent any person from falling therefrom.” It does not direct that one side or one end or any special part of the staging should be so guarded, but that there should be some contrivance “so as to prevent,” etc. As to where the safety rail should be placed must necessarily depend upon the circumstances or conditions. When a staging is fastened to the side of a building, it is obvious that the structure would serve as such guard upon one side. The law does not seem to contemplate that the building would answer for that purpose under all conditions.

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2. It is the position of defendant that the tie-in rope which fastened the staging damaged the woodwork on the inside of the building, and that it was therefore proper for the architect to discontinue such process. It does not appear but that some precaution could have been practicably taken by tying the rope so as to prevent any injury to the building, and such circumstances do not render a compliance with the statute unnecessary.

3. "We come next to the very important investigation as to the liability of the Corbetts. It is the contention of the defendants that the Hurley-Mason Company was an independent contractor, and that it, and not the owners, was responsible for the details of the work and had full control of the employees. We have only to apply the plain provisions of the statute. The language of the text-writers and courts in other cases is helpful. The pertinent inquiries are: Who had the right to control the servants'? Was Hurley-Mason Company acting merely by the authority of the owners ? Or, in the language of the statute, who was the real employer of the plaintiff at the time of the injury? We considered a similar question in Dalrymple v. Covey Motor Car Company, 66 Or. 533 ( 135 Pac. 91 , 48 L. R. A. (N. S.) 424).

Under the contract between the Corbetts and the Hurley-Mason Company, which is in evidence, it appears, in substance, that the owners contemplated the erection of a building at an estimated cost of $600,000, and that the Hurley-Mason Company was employed, with its plant or equipment, by the Corbetts for the full compensation of $20,000 as commission, as their agent to construct the building according to the plans and specifications. In the contract it was provided, among other things, that:

*59 “The principal shall pay for all material used and all labor performed in the construction of the building, * * but the agent shall have the right to enter into contracts for and on behalf of the principal and in its name for the purchase of all necessary material and the hiring of necessary labor.”

All contracts, except as to minor matters, were to be submitted to the principal for approval. Hurley-Mason Company is distinctly referred to as the agent of the owners. If the cost of the building proved to be above the estimate, it did not affect the commission, and if it was built for less all rebates and discounts obtained by Hurley-Mason Company inured to the benefit of the owners. They had the right to employ a person for the inspection of any work or materials and the manner of conducting the business relative to the construction. The authority of the owners, acting through their chosen supervisor, was paramount to that of Hurley-Mason Company. This authority the owners exercised when their servant ordered the fastening of the scaffolding taken away from the building. The Hurley-Mason Company, as designated in the contract, was, in fact, the agent of the owners in the work of construction. Its authority, it is true, was great, but it was all derived from the Corbetts. The company was employed to construct the building as such agent, and was to be paid for its skill, judgment and experience. It was not an independent contractor. It would not change the effect of the contract if it were to be paid a salary by the month or year, instead of a commission.

In 1 Labatt’s Master and Servant, page 126, the author states:

“A provision in an agreement which confers upon the superior employer the right of controlling the con *60 tractor himself in respect to the details of the work must necessarily imply that he is to retain the right of controlling to the same extent the servants, who are the instruments through which the contractor performs the work; otherwise such a provision would he meaningless and ineffectual.”

See, also, Atlantic Transport Co. v. Coneys, 82 Fed. 177 ( 28 C. C. A. 388 ).

In Oregon Fisheries Co. v. Elmore Packing Co., 69 Or. 340 ( 138 Pac. 862 ), this court quotes from 26 Cyc. 966, as follows:

“The relation of master and servant exists whenever the employer retains the right to direct the manner in which the business shall be done, as well as the result to be accomplished; or, in other words, not only what shall be done, but how it shall be done.”

See, also, Swackhamer v. Johnson, 39 Or. 383, 387 ( 65 Pac. 91 , 54 L. R. A. 625); Giaconi v. City of Astoria, 60 Or. 36 ( 113 Pac. 855 , 118 Pac. 180 ); Ackles v. Pac. Bridge Co., 66 Or. 110 ( 133 Pac. 781 ); Lawton v. Morgan, Fliedner & Boyce, 66 Or. 292 ( 131 Pac. 314 , 134 Pac. 1037 ); Tamm v. Sauset, 67 Or. 292 ( 135 Pac. 868 ); Winniford v. MacLeod, 68 Or. 301 ( 136 Pac. 25 ); Lintner v. Wiles, 70 Or. 350 ( 141 Pac. 871 ); Fisher v. Portland Ry., L. & P. Co., 74 Or. 229 ( 143 Pac. 993 ); Dibert v. Giebisch, 74 Or. 64 ( 144 Pac. 1184 ); Cockran v. Rice, 26 S. D. 393 ( 128 N. W. 583 , Ann. Cas. 1913B, 574); Hoag v. Oregon-Wash. Corp., 75 Or. 588 ( 147 Pac. 756 , 760).

4. 5. There was evidence in the case at bar from which the jury might reasonably find, and it appears that they did find, that Harvey was injured by reason of the interference with the manner of using the instrumentality which the Hurley-Mason Company supplied, necessary for preventing the staging from sway *61 ing. The furnishing of this device was a nondelegable duty of the master. The order to take away the lash ropes was given by Frenell, the personal representative of Patterson, Doyle & Beach, architects, the servants of the Corbetts. They were not independent contractors.

Section 2 of the act declares:

“The manager, superintendent, foreman or other person in charge or control of the construction or works or operation, or any part thereof, shall be held to be the agent of the employer in all suits for damages for death or injury suffered by an employee.”

This section is applicable to the Corbetts. This phase of the case has been heretofore fully discussed. In Lawton v. Morgan, Fliedner & Boyce, 66 Or. 292 ( 131 Pac. 314 , 134 Pac. 1037 ), on petition for rehearing, Mr. Chief Justice McBride, in a terse discussion of the law, at page 300 of 66 Or., at page 1037 of 134 Pac., uses the following language:

“The plain intent of the law is to give the injured employee a remedy against his employer.”

Again on the same page it is stated:

“Now, plaintiff was not employed by defendants; neither had they any authority over him; and we would be compelled to read something into the law that is not written there to hold them liable.”

The first part of the above quotation is particularly applicable to the Corbetts, and the last to the Hurley-Mason Company, which was not responsible for the order to remove the fastening of the staging. No representative of that company had anything to do with taking away the same. Patterson, Doyle & Beach, through Frenell, ordered the rope which prevented the scaffolding from swaying to be removed, and the jury *62 by tbeir verdict found them to be delinquent in this respect. Under the ruling in Hoag v. Oregon-Wash. Corp., 75 Or. 588 ( 147 Pac. 756 , 760), they violated their duty and are responsible therefor. There was no error in denying defendants’ motions for a directed verdict. Counsel for defendants saved the rights of their clients by appropriate motions for a nonsuit made at the proper time, but there was no error in denying the same.

6. A careful consideration of the charge given to the jury leads us to believe that the case was fairly submitted under the Employers ’ Liability Act. After reading the statute the trial judge plainly explained the application thereof. It is settled that under the above statute assumption of risk is not a defense.

It follows, therefore, that the judgment must be affirmed as to the Corbetts and Patterson, Doyle & Beach, and it is so ordered. Affirmed.

Mr. Chief Justice Moore, Mr. Justice Eakin and Mr. Justice Harris concur.