The opinion
On Petition eor Rehearing
Before Lusk, Chief Justice, and Brand, Belt, Ross-man, and Hat, Justices.
BRAND, J.
The plaintiffs have filed a petition for rehearing in which they assert that this court erred in failing to overrule Melton v. S. E. Portland Lumber Co., 160 Or. 500 , 85 P. 2d 1308 . This amounts to an assertion that we have correctly stated the law and that the error was in the Melton case. We agree. Our statute pro *602 vides “If there shall be any loss of life * * * the surviving widow or husband and children * * * shall have a right of action * * * ”. O. C. L. A., § 102-1604. We held in effect that the statute means what it says, and that the widow and dependent minor children were properly made parties plaintiff in the pending case. To the extent that a dictum in the Melton case is inconsistent with our holding, it is overruled. Such is the effect of our first opinion wherein we cited Nordlund v. Lewis & Clark R. R. Co., 141 Or. 83 , 15 P. 2d 980 .
In this petition, the plaintiffs, for the first time, contend that they were entitled to prevail as a matter of law under the specific provisions of O. C. L. A., § 102-1601 which precede the “and generally” clause. The case was tried below on the theory that the “and generally” clause controlled. The plaintiffs requested instructions which we set out in our first opinion and which applied that clause as the test, and they repeatedly requested the court to instruct that the question at issue was whether risk and danger were involved. The trial court gave those requested instructions and there were no exceptions reserved to any ruling of the court as to the law. The plaintiffs misapprehend our position concerning the first portion of O. C. L. A., § 102-1601. That part of the statute imposes specific duties upon persons engaged in the erection or operation of any machinery. It imposes specific requirements as to the strength of any scaffolding, staging and the like, without any reference to whether the machinery or the scaffolding be dangerous or not. Such provisions must be obeyed at peril. Other provisions do not apply to all structures or machinery, but do apply only to dangerous machinery. The plaintiffs contend that the conveyor *603 apparatus employed in this case comes within the definition of machinery and by inference, they argue that every apparatus which comes within the dictionary definition of machinery should be held to be dangerous machinery within the meaning of the statute. We suppose that as to any person engaged in operating it, an unprotected power-driven saw would be deemed dangerous machinery, as a matter of law. But to say that everything which can be called machinery is, as a matter of law, dangerous, would be to read out of the statute the word “dangerous”. The use of that word implies that there may be machinery which is to be deemed dangerous, only if it is found to be so by the triers of the fact. The court, at pleaintiffs’ request, submitted that issue to the jury and the verdict amounted to a finding that the machinery was not dangerous. All other issues raised in the petition for rehearing received careful consideration in our first opinion.
This case may be one of great hardship to the plaintiffs. The result will be particularly harsh if the plaintiffs are denied the $5,000 in insurance which the plaintiff Dayle L. Williams at one time elected to accept under the terms of a policy secured by the defendant company. We are constrained to say that if the courts had not been stripped of the statutory powers which they possessed at common law and under statute, (O. C. L. A., § 5-802) we would have upheld the order of the trial court granting a new trial upon the authority of that statute, and of such decisions as Multnomah County v. Willamette Towing Co., 49 Or. 204 , 89 P. 389 , and earlier cases which are cited in the annotations to O. C. L. A., § 5-802. Article VII, section 3 of the constitution adopted since those cases *604 were decided, has deprived the trial court of the power by granting a new trial, to do justice in this case in which we think the evidence strongly preponderated in favor of the plaintiffs on the issue of risk and danger. Under the constitutional provision, “no fact tried by a jury shall be otherwise re-examined in any court * * * unless * * * there is no evidence to support the verdict.” When an exorbitant verdict has been rendered for a plaintiff on flimsy testimony despite an overwhelming weight of evidence to the contrary, the impotence of the court to correct the injustice has generally been met with complacence. This case demonstrates that the constitutional provision cuts both ways.
When a verdict for damages has been returned for a plaintiff and the provisions of constitution Article VII, section 3 are invoked, the inquiry is whether there is some substantial and ordinarily affirmative evidence favorable to the plaintiff who has the burden of proof. If none is found the constitutional prohibition does not apply and the “fact” may be “re-examined”. If evidence is found, the “fact” may not be re-examined. When a jury has rendered a verdict for a defendant who is presumed to be without fault and who has no burden of proof and when, as here, there is evidence or there are inferences which might be drawn from evidence to support the verdict favorable to the one who is presumed to be without fault, the prohibition of the constitution even more clearly prohibits the re-examination of the question of fact tried by the jury which in this case was the existence vel non of risk or danger.
The only error in this ease was an error of judgment by the jury. The petition for rehearing is denied.