It is equally well established that he need not be an employee of the defendant who is charged with a violation of the Act. Myers v. Staub, 201 Or. 663, 272 P.2d 203 (1954); Byers v. Hardy, supra; McKay v. Pacific Building Materials Co., 156 Or. 578, 68 P.2d 127 (1937); Coomer v. Supple Investment Co., 128 Or. 224, 274 P. 302 (1929); Rorvik v. North Pac. Lumber Co., 99 Or. 58, 190 P. 331, 195 P. 163 (1920). Although the section does not expressly so provide, the defendant must be an employer in some sense before the statutory duty will arise.
"In conformity with the general rule applicable where a party is required to make an election between alternative remedial rights, the election which an injured workman is required to make under the provisions of Section 6616, Or. L., [Oregon Code 1930, § 49-1814] will not be presumed where the workman has acted in misapprehension of his legal rights and in ignorance of his obligation to make an election, especially when as in the instant case, no other person's rights have been prejudicially affected thereby; Rehfield v. Winters, 62 Or. 299 ( 125 P. 289); Oregon Mill Grain Co. v. Hyde, 87 Or. 163, 174 ( 169 P. 791); Iltz v. Krieger, 104 Or. 59 ( 202 P. 409, 206 P. 550)." Hicks v. Peninsula Lumber Company, 109 Or. 305 ( 220 P. 133); Coomer v. Supple Investment Company, 128 Or. 224 ( 274 P. 302); Lutz v. Blackwell, 128 Or. 39 ( 273 P. 705). "Our statute, creating the State Industrial Accident Commission, clauses of which have hereinbefore been quoted, does not proclaim any presumption in favor of or against the employer or any other person, and hence it was unnecessary to allege in the complaint herein that the defendant, prior to the injury, had declared his election, in the manner prescribed, not to contribute to the Industrial Accident Fund. The act last referred to confers a special privilege upon an employer thereby releasing him from the common-law liability to respond in damages for a personal injury that has been caused by his negligence, unless he formally renounces the benefits thus bestowed, and such enactment, like the statute of limitations or other bar raised by the legislature to the maintenance of a common-law action must be set up as new matter in the answer, unless the fact affirmatively appears upon the face of the complaint, which defense a
Although this issue has been argued here, we leave its disposition to a court more at home with the law of Oregon.In contending that the statute is applicable, the petitioner refers us to the following Oregon decisions, among others: Byers v. Hardy, 68 Ore. Advance Sheets 557, 337 P.2d 806; Drefs v. Holman Transfer Co., 130 Or. 452, 280 P. 505; Rorvik v. North Pacific Lumber Co., 99 Or. 58, 190 P. 331, 195 P. 163; C. D. Johnson Lumber Corp. v. Hutchens, 194 F.2d 574; Coomer v. Supple Investment Co., 128 Or. 224, 274 P. 302; Myers v. Staub, 201 Or. 663, 272 P.2d 203; Tamm v. Sauset, 67 Or. 292, 135 P. 868; Warner v. Synnes, 114 Or. 451, 230 P. 362, 235 P. 305; Walters v. Dock Commission, 126 Or. 487, 245 P. 1117, 266 P. 634, 270 P. 778. The United States, in asserting that the statute is inapplicable, cites many of the same Oregon authorities.
This Court's opinion in C.D. Johnson Lbr. Corp. v. Hutchens, 9 Cir., 1952, 194 F.2d 574, 576, considered the leading Oregon cases and concluded that the Oregon law "* * * does not protect a person who has no employee relation to anyone engaged in the enterprise out of which the injury arose." Coomer v. Supple Inv. Co., 1929, 128 Or. 224, 274 P. 302, 303, has this to say: "The rule of law is well established in this state that an employer must exercise every care and precaution practical to use for the safety of life and limb of its employees and the public. Or.L. § 6785.
In an action for injuries to a servant within said law, the common-law doctrines of assumption of risk, negligence of fellow servants, and contributory negligence do not apply. Wasiljeff v. Hawley Paper Co., 68 Or. 487, 137 P. 755; Heiser v. Shasta Water Co., 71 Or. 566, 143 P. 917; Jodoin v. Luckenbach S. Co., Inc., 125 Or. 634, 268 P. 51. It must be alleged and proved, however, that the employee, when injured, was acting within the scope of his employment (Brady v. Oregon Lumber Co., 118 Or. 15, 245 P. 732, 45 A.L.R. 812; Walters v. Dock Commission, 126 Or. 487, 245 P. 1117, 266 P. 634, 270 P. 778), and the care required of the employer is commensurate with the degree of danger in the nature of the employment. Camenzind v. Freeland Furniture Co., 89 Or. 158, 174 P. 139; Coomer v. Supple Inv. Co., 128 Or. 224, 274 P. 302. The business and employment in question are, obviously, not within the terms of this law.
The object of the statute has been declared to be the substitution, in hazardous employments, of a higher degree of care than the ordinary degree of care obtaining, generally, in the relation of master and servant. As said by Mr. Justice Coshow in Seldon Coomer v. Supple Investment Co., 1929, 128 Or. 224, 274 P. 302, 303: "The law requires an employer to exercise every reasonable care and precaution requisite to protect its employees and others having a duty or a legal right to be on the premises of the employer from injury." And see Camenzind v. Freeland Furniture Co., 1918, 89 Or. 158, 175, 174 P. 139; Fromme v. Lang Co., 1929, 131 Or. 501, 281 P. 120; Ludwig v. Zidell, 1941, 167 Or. 488, 498, 118 P.2d 1073; Pacific States Lumber Co. v. Bargar, 9 Cir., 1926, 10 F.2d 335; Union Oil Co. of California v. Hunt, 9 Cir., 1940, 111 F.2d 269, 275.
Fitzgerald v. Ore. Wash. R. N.W. Co., 141 Or. 1, 16 P.2d 27; Union Oil Co. of Calif. v. Hunt, 111 F.2d 269; Barker v. Portland Traction Co., 180 Or. 586, 178 P.2d 706. It has been held in numerous cases in this state that whether an activity in which an employee is engaged involves risk or danger is a question of fact to be determined by the jury. Yovovich v. Fall City Lumber Co., 76 Or. 585, 149 P. 941; Wheeler v. Nehalem Timber Co., 79 Or. 506, 155 P. 1188; Poullas v. Grove, 84 Or. 106, 164 P. 562; Rorvick v. North Pacific Lumber Co., 99 Or. 58, 190 P. 331, 195 P. 163; Bottig v. Polsky, 101 Or. 530, 201 P. 188; Jodoin v. Lukenbach S.S. Co., 125 Or. 634, 268 P. 51; Coomer v. Supply Inv. Co., 128 Or. 224, 274 P. 302; Freeman v. Wentworth Irwin, 139 Or. 1, 7 P.2d 796; Ferretti v. Southern Pac. Co., 154 Or. 97, 57 P.2d 1280; Williams v. Clemen's Forest Products, 188 Or. 572, 216 P.2d 241, 217 P.2d 252. This issue was properly submitted by the trial court under lucid and comprehensive instructions, and we believe there is substantial evidence to sustain a conclusion that a machine of this character involved the requisite risk and danger.
In approaching the general question raised by motion for nonsuit in two phases, it is not to be considered as a departure from the firmly-established rule in this state that the Employers' Liability Act does not create a new cause of action, but only the standard of care to be exercised. Shelton v. Paris, 199 Or. 365, 261 P.2d 856; Coomer v. Supple Investment Co., 128 Or. 224, 274 P. 302; Mallatt v. Ostrander Ry. and Timber Co., 46 F. Supp. 250. In the present case the plaintiff, Edward D. Fisher, was not an employee of the defendant Morris P. Kirk Son, Inc., but was actually an employee of Consolidated Freightways.
The Employers' Liability Act substitutes, in hazardous employments, a higher degree of care than the ordinary degree of care prevailing generally in the relationship between master and servant. Coomer v. Supple Investment Co., 128 Or. 224, 274 P. 302; Mallatt v. Ostrander Ry. Timber Co., 46 F. Supp. 250, 252. Employers not operating under the Workmen's Compensation Act in this state are not insurers. "They are liable for consequences, not of danger, but of negligence * * *"; Adams v. Corvallis E.R. Co., 78 Or. 117, 128, 152 P. 504; Wychgel v. States Steamship Co., 135 Or. 475, 296 P. 863; Leavitt v. Stamp, 134 Or. 191, 293 P. 414; and if engaged in a hazardous occupation, as in this case, they are deprived of certain defenses.
The same course was taken by the learned trial judge in the instant case. In cases wherein the "and generally clause" of the Employers' Liability Act has been invoked, as in the case at bar, this court has universally adhered to the holding in Wolsiffer v. Bechill, supra; Yovovich v. Falls City Lumber Co., 76 Or. 585, 149 P. 941; Mackay v. Commission of the Port of Toledo, 77 Or. 611, 152 P. 250; Wheeler v. Nehalem Timber Co., 79 Or. 506, 155 P. 1188; Poullos v. Grove, 84 Or. 106, 164 P. 562; Rorvik v. North Pacific Lumber Co., 99 Or. 58, 190 P. 331, 195 P. 163; McCauley v. Steamship "Willamette", et al., 109 Or. 131, 215 P. 892; Ernest Jodoin v. Luckenbach Steamship Co., Inc., 125 Or. 634, 268 P. 51; Seldon Coomer v. Supple Investment Company, 128 Or. 224, 274 P. 302; Freeman v. Wentworth Irwin, Inc., 139 Or. 1, 7 P.2d 796. In Davis v. Carlton Lumber Co., 77 Or. 441, 151 P. 650, and McGee v. Carlton Lumber Co., 77 Or. 446, 151 P. 652, the proof disclosed that the work in which plaintiffs were engaged at the time of the injury involved a risk or danger inherent therein.