The opinion
O’CONNELL, J.,
specially concurring.
I concur in the result reached by the majority. I add this note simply to make our position clear on a point which the majority opinion leaves ambiguous. The majority opinion states: “A defendant, sought to be charged under the act with duties toward an employee of another, must be a person who has the right to ‘control of the physical instrumentalities immediately in use and which are the media of the injuries or *44 death giving rise to a claim of damage under the law.’ Myers v. Staub, 201 Or 663, 676 , 272 P2d 203 .”
This could be taken to mean that a person sought to be charged under the Employers’ Liability Law must be one who has the right to direct the physical activity which is the medium of the injury. Thomas v. Foglio, 225 Or 540 , 358 P2d 1066 (1961) makes it clear that a third party defendant may be liable under the Employers’ Liability Law where his participation in the work causing the injury consists only in bringing to the work project a dangerous instrumentality which exposes the plaintiff workman to danger. The part of the majority opinion quoted above might be construed to express the view stated by Mr. Justice Perry in the dissent in Thomas v. Foglio, supra. Ambiguity such as this spawns unnecessary litigation and appeal. My comments are intended only to avoid this ambiguity.