Hoag v. Washington-Oregon Corp.

Mr. Justice Eakin

delivered the opinion of the court.

1. We find, first, that the book in the record labeled “Bill of Exceptions” is the full transcript of the evidence taken at the trial and certified by the judge. It consists of about 440 typewritten pages, and is not such a bill of exceptions as is contemplated by Section 171, L. O. L., or by the rules of the court. Upon this question see the cases cited under Section 169, L. O. L. As already stated in State v. Murray, 11 Or. 413 (5 Pac. 55), and in Eaton v. Oregon R. & N. Co., 22 Or. 498 (30 Pac. 311), this court lays down the rule as to what constitutes a proper bill of exceptions. It may be stated in narrative form, such as there is testimony tending to prove, etc., and need not be prolonged by question and answer, objections and argument of counsel. Section 171, L. O. L., provides:

“The objection shall be stated with so much of the evidence or other matter as is necessary to explain it, but no more. ’ ’

2. And this rule still obtains and is not affected by the 1910 amendment of Article YII of the Constitution (see Laws 1911, p. 7). Many cases come to this court *594 in which the bill of exceptions is the full transcript of the testimony. This conrt has taken great pains to explain this matter, but many lawyers have either not seen the decisions or carelessly sent np the whole testimony without a formal bill of exceptions: See Willis v. Horticultural Fire Relief of Oregon 69 Or. 293 (137 Pac. 761); Bigelow v. Columbia Gold Min. Co., 54 Or. 452 (103 Pac. 56, 1007); Oldland v. Or. Coal & Nav. Co., 55 Or. 345 (99 Pac. 423, 102 Pac. 596); Hahn v. Mackay, 63 Or. 100 (126 Pac. 12, 991); Keady v. United Rys. Co., 57 Or. 325 (100 Pac. 658, 108 Pac. 197); West v. McDonald, 67 Or. 551 (136 Pac. 650); Litscher v. Alexander, 68 Or. 369 (136 Pac. 847); National Council v. McGinn, 70 Or. 457 (138 Pac. 493). The bill of exceptions is intended as an aid to the court in finding the particular facts bearing upon a certain exception. The court has often protested that it will not read such a mass of testimony in an investigation of an assignment of error. The pretended bill of exceptions in this case is not in any sense such except as to the motion for nonsuit, and we will ignore it for any other purpose.

The instructions of the court include the construction of the Employers’ Liability Act of 1910 (Laws 1911, p. 16). So far as it is not dependent upon the bill of exceptions we will discuss the instructions in the light of the issues. The action must be considered as brought and to be determined under that act. The issues tender no suggestion that could be treated under the common-law liability.

3. As to the motion for nonsuit, the statute of 1910 gives a remedy against contractors, etc., and only contemplates a liability against employers. Section 2 of the act provides that the manager, superintendent, foreman, etc., in charge or control of the work shall be *595 held to he the agent of the employer, and the act does not create a liability upon the superintendent or manager. This is decided in Lawton v. Morgan, Fliedner & Boyce, 66 Or. 292 (131 Pac. 314, 134 Pac. 1037), where it is said by Mr. Justice Moore :

“It is evident that an employer, whether owner, contractor or subcontractor, who is engaged in the construction of a building, is the only party defendant in an action to recover damages. ’ ’

But the manager or superintendent is to be held the agent of the employer.

4. In this case the turning on of the current is admitted by appellant to be the proximate cause of the injury, and Gilmore, the superintendent, actually turned on the current. The manager and superintendent were both on the ground supervising the work, and should have looked after any matter where there was danger or risk to the lineman; and they cannot excuse themselves by saying that another lineman assumed that responsibility and thus relieve themselves. The company was responsible for such negligence, and the evidence was sufficient to go to the jury on that question ; and the motion for a nonsuit was properly denied as to the company.

5. The principal instruction which we may consider relates to the application of the 1910 statute. The trial judge in instructing the jury discussed that law at great length. This case evidently comes within that act, and it was the duty of the court to instruct the jury as to its application. Beading the law at length to the jury was likely to involve them in the determination of questions not relating directly to the issues. If any issues disclosed a liability that did not come within this statute, the court should have pointed it out to the jury *596 and given instructions in relation thereto. The court in the trial of the case fell into the error mentioned in Schulte v. Pacific Paper Co., 67 Or. 334 (135 Pac. 527, 136 Pac. 5), which was not decided until after this case was tried. The jury was left to apply the law of 1910 if it desired and to determine for itself to what extent it applied to the case. This judgment must be reversed upon the authority of the Schulte case and remanded for new trial. The statute provides that an employer having charged any work involving risk or danger to employees shall use every precaution practicable for the safety of life and limb, and the manager and superintendent in charge or control of the work shall be held to be the agent of the employer. That is a brief statement of the liability leaving out all verbiage not applicable to this case. The court instructed the jury as to the common-law liability of the defendant company, and went into detail as to three elements of the common-law liability, namely, the fellow-servant rule, the assumed risk, and contributory negligence; but those elements are defenses in a common-law action, and are affected by the-statute of 1910. The first two elements are entirely eliminated by the statute, and the one modified; but the instructions of the court wholly fail to enlighten the jury as to what facts would take the case out of the statute, and the jury was left entirely in the dark on that question. In any event, it was his duty to control them on the issues and the law applicable thereto, and not to leave them to say what questions were under the common law and what evidence was applicable thereto.

6. The case was clearly a case of an owner doing work of repairing or altering a structure involving danger, and came under the statute; and whether proper care and precaution were used, or contributory negligence was established as an element affecting the *597 amount of damages, should have been presented to the jury.

The judgment is reversed and the cause dismissed as to Turner and Gilmore, and remanded for such further proceedings as may seem proper.

Bevebsed and Bemanded.

Mr. Chief Justice McBeide, Mr. Justice Bean and Mr. Justice Burnett concur.