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crew, of which plaintiff was a member, had ] access to the valves in question.

Plaintiff by his complaint charged the defendant with negligence in the following particulars: (1) In connecting the steam line between the mud drum and the blow-off tank prior to the completion and acceptance of the installation of the mud drum; (2) in permitting the valve or valves in the steam line to be, and remain, open while plaintiff and his fellow employees were at work in and about the mud drum; (3) in blowing off the boilers in operation in defendant's plant; (a) without warning to plaintiff; (b) without first exercising care and caution to ascertain whether or not the valves in the exhaust steam line were open; and (c) without first disconnecting the steam line or closing the valves therein.

In the case of Wilson v. Valley Improvement Co., supra, Mr. Justice Poffenbarger lucidly states the rule, which is sustained by the foregoing authorities, as follows:

"The owner of a mill, or other place of business, in requesting another person to send his servants there to perform work beneficial to the owner, extends an invitation to such persons as are sent in obedience to the request, and when they arrive, they are there on business for the owner of the property, as well as their master, and are, therefore, entitled to exthe premises as if they were in fact his own

act the same sort of duty from the owner of servants."

The authorities above cited announce the further rule that where an employer sends his employee to do work upon the premises of another, at the request of, or under contract with, the latter, and the employee, without fault on his part, is injured by the negligent failure of the owner of the prem

Defendant contends that no evidence was adduced by plaintiff to establish any of the above specifications of negligence, and therefore the cause should not have been submit-ises to keep them in a reasonably safe conted to the jury. Counsel argues that the de- dition, such employee has his remedy against fendant owed the plaintiff no such exacting the negligent owner, and the employer will obligations as are imposed by common law not, under such circumstances, be liable to and statutory law upon an employer; that his employee, in the absence of actual notice defendant was not required to make or keep of a defect or danger, unless he has expressthe place of work safe, except only that ly or impliedly assumed such obligation. when its agents had knowledge of plaintiff's Also see Foster v. Conrad (C. C. A.) 261 Fed. presence in the plant and knew also that the 603; Seminole Graphite Co. v. Thomas, 205 ordinary operation of the plant might cause Ala. 222, 87 South. 366. injury, the duty existed to refrain from such acts; and that, in the absence of direct evidence that some one acting for the defend-generated and used by defendant in its plant ant opened the valves and permitted the steam to go out of its course and into the place where plaintiff was working, there was no basis for imposing liability upon the defendant company.

Defendant was not an insurer of the safety of plaintiff against injury from the steam

where plaintiff was working. Under the circumstances shown by the evidence, it was incumbent upon the defendant to exercise ordinary care for the safety of plaintiff, or a degree of care corresponding to the danger involved. Ahern v. Oregon Telephone Co., 24 Or. 276, 294, 33 Pac. 403, 35 Pac. 549, 22 L. R. A. 635.

In the case last cited the court observed: "Where the danger is great, a high degree of care is necessary, and the failure to observe it is a want of ordinary care under the cir cumstances."

[2] Steam is so far a dangerous agency that a high degree of care is required of those engaged in its production and use. The New World v. King, 16 How. 469. 14 L Ed. 1019; Illinois Central R. Co. v. Phillips, 49 Ill. 234; Id., 55 Ill. 194.

[1] The conditions under which plaintiff was employed and working upon the defendunt's premises imposed upon defendant the same legal obligation and duty to keep the premises and the place at which plaintiff was at work in a reasonably safe condition, as would have rested upon it if plaintiff had been employed by defendant at the time and place of his injury. Wood's Master and Servant (2d Ed.) § 337; 18 R. C. L. 586; note, 46 L. R. A. 33, 52; Wilson v. Valley Improvement Co., 69 W. Va. 778, 73 S. E. 64, 45 L. R. A. (N. S.) 271, Ann. Cas. 1913B, 791; Channon v. Sanford Co., 70 Conn. 573, 40 Atl. 462, 41 L. R. A. 200, 66 Am. St. Rep. 133; Roche v. Llewellyn Iron Works Co., 140 Cal. 363, 74 Pac. 147, in which the facts are much like those in the instant case; Samuelson v. Cleveland Iron Mining Co., 49 Mich. 164, 13 N. W. 499, 43 Am. Rep. 456; Johnson v. Spear, 76 Mich. 139, 42 N. W. Defendant asserts that plaintiff did not of1092, 15 Am. St. Rep. 298; Coughtry v. Wool- fer any evidence to account for the valves en Co., 56 N. Y. 124, 15 Am. Rep. 387; Cough- in the steam pipe being open when the abovelin v. The Rheola (C. C.) 19 Fed. 926; Cliffe mentioned boiler was blown off, and defendv. Pacific Mail S. S. Co. (C. C.) 81 Fed. 809. | ant contends that the jury just as readily

It is obvious that if the valves in the drainpipe which has been described had been closed at the time the live boiler was blown off by defendant's night fireman, plaintiff would not have been injured.

(220 P.)

might have inferred that the valves were [ did not have access to the pipes or the opened by plaintiff, his fellow workmen, or valves. Plaintiff and his associates testified some third person, as by the employees of that they did not open the valves or handle defendant, and in that view of the case, it is them in any way. claimed that the question of responsibility for the valves being open was left to speculation, entitling defendant to a judgment of nonsuit.

The place in which plaintiff was working was entirely safe so long as steam from the live boilers in the plant was not permitted to enter the boilers or mud drum in which plaintiff and his associates were working; when the steam line was connected, the place became dangerous. Defendant did not notify the plaintiff, his fellow workmen, or his foreman, that the boilers in which they were working had been connected with the steam line; such knowledge as they had respecting that matter entitled them to believe that they were not connected with the steam line.

[3] It was the duty of defendant to exercise care and vigilance to prevent injury to plaintiff, proportioned to the danger to be avoided; to that end, defendant was required to take such reasonable precautions as an ordinarily prudent man, under the circumstances, knowing that plaintiff was ignorant of the danger which threatened him, would have employed for safeguarding plaintiff.

The facts above recited, accompanying the fact of the injury, justified the jury in drawing the inference that the valves were open at the time steam was turned into the pipes, as the result of negligence, and that defendant was responsible for that negligence, and also authorized the inference that defendant failed to exercise due care to ascertain whether or not the valves in the exhaust steam line were open, before blowing off the live boiler in defendant's plant.

[6] The evidence of the defendant, given in support of its defense, to the effect that its employees closed the valves upon connecting the steam line, and did not thereafter open them prior to plaintiff's injury, did not authorize the court to direct the jury to return a verdict for the defendant.

[7] Defendant in its answer pleaded, and upon the trial urged, that the right of action of plaintiff against defendant, if any, was vested in the state for the benefit of the accident fund, and that the state was the only proper party plaintiff in an action to enforce that right.

Immediately following his injury, plaintiff was taken to the St. Vincent's Hospital in Portland, Or., for first aid treatment. A few hours later, and upon May 3, 1921, the date of plaintiff's injury, Miss Vera Hammond, who was then employed by the Indus

tiff at the hospital, and while there furnished plaintiff a blank form of workman's claim for compensation, prepared plaintiff's claim thereon, had him sign the same, and forwarded it to the Industrial Accident Commission. The claim recited that plaintiff was injured away from the plant of his employer, by the negligence of the defendant.

[4] While it is firmly established that, in the absence of facts from which negligence may be inferred, defendant is presumed to have exercised due care, and the mere hap-trial Accident Commission, called upon plainpening of the injury is insufficient to raise an inference of negligence, it is also a settled rule that, where proof of an accident is accompanied by proof of facts and circumstances from which an inference of negligence may or may not be drawn, the case is one for determination by the jury. Geldard v. Marshall, 43 Or. 438, 444, 73 Pac. 330; Rogers v. Portland Lumber Co., 54 Or. 387, 392, 102 Pac. 601, 103 Pac. 514; Devroe v. P. R. L. & P. Co., 64 Or. 547, 131 Pac. 307. [5] The admitted fact of the injury to plaintiff was accompanied by the additional facts and circumstances shown by plaintiff's evidence that when the boiler tests were completed on Sunday, the water was drained from the mud drum onto the floor of the dock just outside the boiler room, and the valves in the drain pipe were at that time left open; on Monday defendant connected the steam line to that pipe, at which time the valves were open; a few hours later, without any notice to plaintiff, or those responsible to him, that the steam line had been connected, defendant's night fireman turned a large volume of steam into the pipe, and the valves were then open. Defendant had exclusive control of those pipes, and of the valves therein, and of the steam that was injected into the pipes. Strangers

Upon receipt of plaintiff's claim, the Commission made arrangements for hospital accommodations and the services of a nurse and physician for plaintiff, and on May 6th awarded plaintiff the sum of $37.44, the amount of compensation which he was entitled to under the Compensation Act as temporary total disability for the period of two weeks. A warrant was issued for that sum, and forwarded to plaintiff, who caused the same to bé presented for payment upon May

10, 1921.

On May 25, 1921, the Commission made a further award of compensation to plaintiff in the sum of $43.68, also for temporary total disability, and which, with the previous award, equaled the amount plaintiff was entitled to, as such compensation, for the month of May 3 to June 3, 1921. A warrant was issued for the last-mentioned sum, and forwarded to plaintiff.

*

On June 4, 1921, plaintiff, through Jay this act or seek a remedy against such other, Bowerman, his attorney, returned the last- such election to be in advance of any suit, and mentioned warrant to the Industrial Acci- if he take under this act the cause of action dent Commission, together with a cashier's against such other shall be assigned to the state for the benefit of the accident fund. If check for $37.44, to cover the previous pay- the other choice is made the accident fund shall ment. In his letter of transmission, Mr. contribute only the deficiency, if any, between Bowerman informed the Commission that the amount of recovery against such third perplaintiff desired to maintain a position where son actually collected and the compensation he could bring action against the defendant provided or estimated by this act for such case. for damages resulting from his injury, and * Any compromise by the workman of for that reason the money was returned. any suit which would leave a deficiency to be be In response to the letter of Mr. Bower-made good out of the accident fund may man, the Commission, on June 6, 1921, by made only with the written approval of the letter acknowledged receipt of the returned department." Section 6616, Or. L. warrant and the cashier's check covering the payment of $37.44 previously made to plaintiff, and stated that the Commission had expended on behalf of plaintiff, for nurse hire, $191. The letter also contained this further statement:

"We note your statement that it is Mr. Hicks' desire to maintain a position where he can bring action against the Peninsula Lumber Company, and we therefore hand you herewith a formal notice of election blank, which we desire to have Mr. Hicks execute in order to complete our records in this case."

On June 21, 1921, plaintiff filled out and executed the form of notice of election above mentioned, and returned the same to the Industrial Accident Commission, together with his promissory note in favor of the Commission, payable on demand, for the sum of $191, to cover the nurse hire which the Commission had paid in connection with his injury. In the form executed by plaintiff, as aforesaid, he declared his election to seek his remedy against defendant.

It will be noticed that in all cases where the injured employee pursues his remedy against a third person, the Commission must be consulted before a compromise can be made by the plaintiff for an amount less than the compensation provided by the statute, and also that such injured employee is entitled to compensation out of the accident fund for the deficiency, if any, between the amount of recovery actually collected and the compensation provided or estimated by the Compensation Act.

It follows from these provisions that an injured workman, in order to preserve the rights afforded him by the act, is required Commission, even though he intends to seek to file a claim for compensation with the his remedy against the third party responsible for his injury. It is also clear that in many cases the injured employee cannot intelligently determine whether to accept the benefits of the act or seek his remedy against the third party, until the Commission has made a final award in his case, determining the amount of compensation the employee is entitled to receive from the accident fund. Consequently the mere filing of the claim, followed by an award of the full compensation provided by the statute, does not necessarily constitute an election nor effect an assignment of the employee's right of action against the third party. The only limitation as to time when the injured employee shall make the election required by the act is that such election shall be in advance of any suit. The statute contemplates that the workman shall weigh the advantages to himself of each of his alternative rights, and that, after consultation with the Commission, he shall make a deliberate choice of the remedy he deems of most value to himself. The decision of the workman, if he elects to take under the act, must be followed by a formal assignment of his claim against the third The section of the Compensation Act upon party to the state for the benefit of the acwhich defendant relies provides:

The Commission received the declaration of plaintiff of his intention to seek his remedy against defendant, and made no further payment of compensation to plaintiff. And at no time has the Commission asserted or claimed any title to, or interest in, the right of action of plaintiff against the defendant. Plaintiff alleged in his reply, and testified as a witness in his own behalf, that he did not know that he had any claim or right of action against the defendant at the time he filed his claim for compensation, nor at the time he received and accepted the payment of $37.44, and that he collected the warrant for the latter sum without any intention of making an election and without any knowledge that he had rights, concerning which he was required to make an election.

cident fund, and unless the workman is apprised of the fact that he possesses alternaThat if the injury to a workman tive rights and has knowledge of the nature occurring away from the plant of his employer is due to the negligence or wrong of another and extent of those rights, he cannot make not in the same employ, the injured work- a real election.

man

* shall elect whether to take under Defendant contends that the award of two

(220 P.)

weeks' compensation to plaintiff by the Com-
mission, and his receipt and acceptance of
the sum so awarded, together with payment
by the Commission of nurse hire for plain-
tiff, constituted an election by plaintiff to
take under the act, and without further ac-
tion by plaintiff, worked an assignment of
his right of action against the defendant to
the state for the benefit of the accident fund.
[8] 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 work-
man is required to make under the provi-
sions of section 6616, Or. L. will not be pre-
sumed where the workman has acted in
misapprehension of his legal rights and in
ignorance of his obligation to make an elec-
tion, especially when, as in the instant case,
no other person's rights have been prejudi-
cially affected thereby. Rehfield v. Winters,
62 Or. 299, 305, 125 Pac. 289; Oregon Mill &
Grain Co. V.
Hyde, 87 Or. 163, 174, 169 Pac.
791; Iltz v. Krieger, 104 Or. 59, 202 Pac.
409, 206 Pac. 550.

C. F. SENTER, Respondent, v. PENINSULA
LUMBER CO., a Corporation, Appellant.
(Supreme Court of Oregon. Nov. 13, 1923.)

Department No. 2.

Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

C. A. Hart, of Portland (Carey & Kerr, of
Portland, on the brief), for appellant.
John W. Kaste, of Portland (Jay Bowerman,
of Portland, on the brief), for respondent.

tion against the defendant to recover damages McCOURT, J. Plaintiff instituted this acfor personal injuries caused by the alleged negligence of the defendant in blowing off a boiler and permitting the steam therefrom to enter the place where plaintiff was working. From a verdict and judgment in favor of plaintiff, the defendant appeals.

The questions, both of law and of fact, presented by this appeal, are identical with those considered by the court in the case of Hicks v. Peninsula Lumber Co., 220 Pac. 133, just decided. For the reasons stated in the opinion in that case, the judgment of the circuit court

MCBRIDE, C. J., and BEAN and BROWN,. JJ., concur.

[9] The payment of nurse hire by the Com-is affirmed. mission was made as first aid to the injured workman, and did not constitute any part of the compensation to which plaintiff was entitled under the act (section 6628, Or. L.), and cannot be invoked to vest the state with an interest in plaintiff's right of action against the defendant.

[10] The sum of $37.44 paid to plaintiff on account of compensation under the act was promptly returned to the Commission and accepted by it, with the understanding between plaintiff and the Commission that any claim that the state had in plaintiff's right of action against the defendant by virtue of such payment was discharged and cut off by the refund of the amount of the payment.

PARKER v. CITY OF SILVERTON et al.

(Supreme Court of Oregon. Nov. 13, 1923.)

I. Municipal corporations 658-Streets belong to public; "public highways."

The streets within an incorporated city are a part of the public highways, and belong to the whole people of the state, and persons residing in the city have an equal but not a su

perior right to the use of the streets over those who reside elsewhere.

and Phrases, First and Second Series, High[Ed. Note.-For other definitions, see Words way.]

661(1)—Legisla

2. Municipal corporations
tive power of over streets dependent on dele-
gation by Legislature.

The Commission is given full power and authority by the statute over that matter, as well as all other questions arising in the administration of the Compensation Act, and if plaintiff's rights were affected by the payment mentioned, the action of the Commission, amounting to a disclaimer of any interMunicipalities possess no legislative power est in plaintiff's claim, under the circum-over public streets within corporate limits unstances, operated to restore plaintiff to the less conferred by legislative authority, the position he occupied before any payment was Legislature being empowered to delegate to made, as completely as might have been done municipalities the power to regulate streets and by a decree of a court of equity declaring to withdraw it at will: that result.

[11] The submission to the jury of the question of whether plaintiff had elected to take under the act was not error of which defendant is entitled to complain.

It follows that the judgment of the circuit court must be affirmed, and it is so ordered.

3. Municipal corporations ~592(1)—Municipal license fee imposed on a carrier of passengers by motor vehicles between two cities, not being for regulatory purposes, held void.

Where a carrier of passengers by motor vehicles for hire between two cities under a permit issued by the Public Service Corporation had paid the license fee required by Laws 1921, MCBRIDE, C. J., and BEAN and BROWN, c. 371, p. 728, § 25, as amended by Laws Sp. JJ., concur. Sess. 1921, c. 8, p. 23, which by Laws 1921, c.

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For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

371, p. 729, § 26, is in lieu of any license fee imposed by a municipality except for regulation only, a license fee of $300 imposed by ordinance for receiving and discharging passengers on the streets was not regulatory, but a tax, and in conflict with Laws Sp. Sess. 1921, c. 10, p. 36, § 3, conferring on the Public Service Corporation the right to regulate motor vehicles for hire not operating exclusively within the corporate limits of any cities, and is there

the terminal station, and is not permitted to receive or discharge passengers on the public streets at all. It also provides that the fares and charges for transportation shall be just and reasonable, and that, if the same are exorbitant or unreasonable, the permit may be revoked by the council. It prescribes the streets which may be used by motor vehicles carrying passengers or property for hire in entering and departing from the city 4. Carriers 10-Licensed carrier entitled to other than those designated. It provides a of Silverton, and forbids the use of streets receive and discharge passengers streets.

fore void.

on the

penalty of imprisonment or fine or both for Where a carrier was authorized by the its violation, and gives the recorder of the Public Service Commission to transport pas-city power to revoke the license for a second sengers for hire between two incorporated or subsequent conviction for violation of its cities, it had a right to receive and discharge terms. By its terms the ordinance is made passengers upon the public streets, of one of applicable to all carriers, whether operating the cities, and the municipality could not pre- wholly within the city or operating to and vent or prohibit it. from points outside of the city.

Department 1.

By chapter 10, Laws Sp. Sess. 1921, the Legislature confers upon the Public Service

Appeal from Circuit Court, Marion Coun- Commission of Oregon the exclusive power ty; George G. Bingham, Judge.

Action by J. W. Parker against the City of Silverton and others. Judgment for plaintiff. Defendants appeal. Affirmed.

Custer E. Ross, of Silverton, for appel

lants.

Fred A. Williams, of Salem, for respondent.

to regulate public carriers engaged in trans-
porting by motor-propelled vehicles passen-
gers or property for hire over the public
highways of the state, not operating exclu-
sively within the corporate limits of an in-

corporated city or town. Under this statute
it is made the duty of the Public Service Com-
mission of this state to supervise and regu-
late all transportation companies engaged
in the transportation of persons or property
for hire by motor vehicles over the public
highways of the state, and to fix their rates
and charges therefor. The term "transpor-
tation company" is defined by the act to in-
clude every corporation or individual thus
engaged, and the term "public highway" as
defined means "every public street
in this state." Section 1. The Commission
is empowered to prescribe general rules and
regulations governing such transportation
and providing for the safety thereof; to re-
quire them to furnish adequate facilities for
the conduct of their business, and to file an-
nual reports and to furnish such other in-
formation as the commission may require.
The act requires transportation companies
to pay an annual license fee to the Com-
mission in order to defray the expenses of
administering the act, and to furnish bonds
with sufficient sureties satisfactory to the
Commission, conditioned to pay the fees pre-
scribed by section 25 of chapter 371 of the
General Laws of Oregon for 1921, as amend-

RAND, J. The plaintiff is a common carrier of passengers, between Salem and Silverton, by means of motor vehicles, under a permit regularly issued by the Public Service Commission. He brought this suit to enjoin the enforcement of an ordinance of the city of Silverton. This ordinance was passed on March 28, 1923, and it prohibits the operator of any vehicle, used for the carriage of passengers or property for hire between points within and without the city, from receiving or discharging passengers or property on any of the public streets of the city, except upon payment to the city of a license fee of $300 per annum for each vehicle having the seating capacity of those operated by plaintiff. The ordinance also provides that permits may be issued upon the annual payment of $75 for each stage having the seating capacity of those operated by the plaintiff, on condition that the operator shall provide a stage terminal in the city of Silverton, which, under the terms of the ordinance, shall be located entirely upon privately owned property, shall be housed in a sub-ed by chapter 8, Laws Sp. Sess. 1921. Secstantial structure, and be constructed in conformity to the ordinances of that city, and be equipped with suitable waiting rooms, which shall be heated in the cold season, and shall have adjacent thereto suitable lavatories and toilet facilities for both males and females. But in such case the carrier must receive and discharge all passengers at

tion 9 of chapter 10, Laws Sp. Sess. 1921, prescribes a penalty which may be enforced upon any carrier under the act who violates or fails to comply with any order, decision, rule, regulation or requirement of the Public Service Commission, and section 3 of chapter 10 provides that the Public Service Commission, in the exercise of its jurisdiction, shall have

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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