Quinn v. Hawley Pulp & Paper Co.

Mr. Justice Burnett

delivered the opinion of the court.

The testimony on behalf of the plaintiff showed, in substance, that while he was engaged in making his round as watchman for the defendant company he found the door leading into Mill “C” open and, as required by the duties of his station, proceeded to close it. It was what is known as a sliding door hung upon overhead rollers. The paper was in bales weighing about 125 pounds each and was piled up to a height of about 8 or 9 feet and in such close proximity to the door that on undertaking to close it four of them fell down upon the plaintiff and injured bim in the manner described in the complaint. The only testimony on behalf of the defendant was that of two employees who testified substantially that they piled the paper in the usual way. It was shown in testimony, for the purpose of proving that it could be done, that after the accident the company caused stanchions to be *634 erected against which the paper could he piled without in any way interfering with the operation of the door or the storage of the bales. The defendant maintains as its theory of the case that this was not a work involving risk or danger and, hence, did not come within the operation of the employer’s liability law. The excerpt from that statute applicable to this case reads as follows:

“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.”

1, 2. The instruction propounded by the defendant to raise this question is here quoted:

“If the work that the plaintiff engaged in was not work involving a risk or danger then any contributory negligence on the part of the plaintiff which contributed to approximately bring about the accident, then the plaintiff would not be entitled to recover anything on this action, provided of course that the contributory negligence of the plaintiff must have been in one or more of. the respects as set forth in defendant’s answer. ’ ’

This requested charge is so involved that instead of enlightening the jury it would have tended to confuse them and hence on that ground alone was properly refused. It is true that a party is entitled to have his theory of the case presented to the jury under proper instructions: Fiore v. Ladd, 25 Or. 423, 425 ( 36 Pac. 572 ); Farmers’ etc. Nat. Bank v. Woodell, 38 *635 Or. 294, 307 ( 61 Pac. 837 , 65 Pac. 520 ); State v. Smith, 43 Or. 109, 114 ( 71 Pac. 973 ); Cerrano v. Portland Ry., L. & P. Co., 62 Or. 421, 427 ( 126 Pac. 37 ). This, however, is qualified by the requirement that there must be some testimony tending to prove the theory of the party complaining. The reason of this is that the jury is charged with the duty of considering the testimony. To aid them in so doing the court instructs them as to the law applicable thereto. If there be no evidence to which the requested charge properly may be applied, to give it would be confusing to the iurv as an abstraction, foreign to the case.

3, 4. The testimony on behalf of the plaintiff was utterly undisputed. It showed that he was injured while in the usual prosecution of his employment. We thus have a situation delineated .by the evidence on his behalf where, in the discharge of his duty in the customary manner, he was injured by the falling upon him of the paper so piled as to cause that result by the closing of the door. That the bales were stacked up in the usual way does not controvert the showing of the plaintiff. If that was the habitual method of storing the paper, the wonder is that some one was not hurt before the injury in question. If the process used was such as in fact to cause hurt to the employee, when it was practicable to obviate the danger, its long continuance does not make it .less culpable. There was, therefore, no theory of the case to which the requested charge, even if properly stated, would have been applicable ; hence it was not error to refuse it. The case stated and proved by uncontroverted testimony lies clearly within the purview of the enactment under consideration. The instructions given and assigned as error are proper statements of the law as declared by the statute mentioned. In brief, there was nothing in *636 the testimony taking the case out of the operation of the employer’s liability law, and hence it was not error to refuse to go into the abstract question predicated upon the theory that the work was not one involving a risk or danger. The judgment is affirmed.

Affirmed.