# Bottig v. Polsky

> Oregon Supreme Court · October 4, 1921 · 101 Or. 530

URL: https://www.frixlaw.com/law-library/cases/6907478

## Case

- **Full name:** BOTTIG v. POLSKY
- **Court:** Oregon Supreme Court
- **Decided:** October 4, 1921
- **Citations:** 101 Or. 530; 201 P. 188; 1921 Ore. LEXIS 184
- **Precedential status:** Published
- **Opinion:** Concurrence by Burnett
- **Judges:** Bean, Benson, Brown, Burnett, Harris, Johns, McBride
- **Cited by:** 29 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6907478

## Opinion text

BURNETT, C. J.,
Concurring in the Result. — 13. The Circuit Court set aside a verdict and judgment for the plaintiff and ordered a new trial. I concur in the result reached by Mr. Justice Harris in his opinion affirming this action, for the reasons here stated.
The charge of negligence is as follows:
“That said injury to plaintiff was caused by the carelessness, recklessness and or negligence of defendant in requiring plaintiff to place said barrels in said boxcar, one barrel upon another, and to stack said barrels up as high as the roof of said ear would permit, and in not using every device, care and precaution which it is practicable to use for the safety and protection of life and limb of defendant’s employees, as required by law, in that defendant did not have sufficient employees engaged in said work, and directed that said work be done in such manner that it was possible for barrels to roll down from the top of the pile and to fall upon the person engaged in said work, and directed said work to be done in such manner as to be dangerous to those employed therein. *561 That defendant well knew of the danger involved in loading said barrels in said car at that time in the manner in which he required said work to be done, and failed to take proper and necessary precautions to prevent such accidents.”
The allegation is defective in that it does not show by any statement of fact or otherwise than as embodied in the pleader's averment of legal conclusion, what it was practicable to do, that was not done, for the protection of life and limb in the progress of the work. I am not in accord with the argument by inference at least, that the work contemplated by the Employers' Liability Act must be “inherently” dangerous. That is importing into the statute an element not within the legislative utterance. The words of the statute are, “work involving a risk or danger to the employee or public.” In the instant case, so far as the allegation is concerned at least, the plaintiff received an injury in the performance of the work in question. The danger was realized. The risk became an actuality. As the event proved, the risk or danger was involved in that particular work. It was not involved in anything else. Having been “involved” therein, it was evolved therefrom as an accomplished result as the work progressed. Had it not been for the work in which the plaintiff was engaged, the hurt would not have happened. The risk of the injury would not have been “involved,” but for that very work.
The statute does not allude to suspected or foreseen danger. It is intended to apply to danger which actually produces an injury, whether the risk be anticipated or unsuspected. Whether the work did produce an injury is of course a question of fact. But if *562 it is to be taken as granted that the plaintiff was hurt in the performance of that work, then indeed res ipsa loquitur; the work did involve a risk or danger. No one has yet pointed ont where the risk was “involved,” unless it was in the work in question. In such an instance, the case would turn upon whether or not everything practicable to use for the protection and safety of life and limb had been employed in carrying on the work. It is the duty of the plaintiff in such cases to allege what was practicable to use, and aver that the defendant did not use the same.
The demurrer to the complaint ought to have been sustained, and for this reason I concur in the result of affirming the action of the Circuit Court in setting aside the judgment rendered for the plaintiff.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6907478. Public record. Not legal advice.