a guard rail around the shaft; (2) failed to provide a system of communication by means of signals; (3) failed to provide a sufficiently strong rope with which to fasten the anchor pulley or snatch block, and neglected to test the sling rope which was used; (4) maintained a shaft which was so small that articles could not be hoisted through it freely and without striking against the under side of the second floor, thus involving a risk or danger; (5) and permitted the flooring at the edge of the hatch to become slippery, and hence creating a risk or danger which would be involved in the work of receiving articles hoisted through the hatch.

The defendants filed separate answers, and each denies that Malloy was working for the company or carrying out an order given by Camp when injured, or that either of the defendants was negligent in any of the particulars enumerated by the plaintiff. Each defendant alleges affirmatively, as a further and separate defense, that Malloy was injured "when the said plaintiff was occupied in and about his own personal business and affairs, and such as had no connection with or relation to the business or affairs" of the Marshall-Wells Hardware Company; and that his injury was "the result of his own acts," and, if there was any element of negligence, it was not the negligence of either defendant. In addition to the denials and the defense already mentioned, the company pleads two other defenses, one of which is to the effect that the circuit court lost jurisdiction, when the company filed a petition and bond for the removal of the cause from the circuit court for Multnomah county to the district court of the United States for the District of Oregon, while the other avers that a judgment was rendered against the plaintiff in an action prosecuted by him against the corporation for the injury

of the injuries sustained by him, and that such action terminated in an involuntary judgment of nonsuit. This judgment did not bar the instant action. Section 184, L. O. L. The plea that the circuit court lost jurisdiction when the company filed a petition for removal cannot be sustained, for the reasons stated by Mr. Justice McCAMANT in the opinion rendered after the first hearing of the appeal.

An examination of the record convinces us that the testimony of the witnesses Frank A. Doney, Philip Erickson, and William Malloy was properly received and was admissible for the purposes stated in the original opinion.

We are urged to pause and consider most carefully before definitely committing ourselves to the construction which the original opinion places upon chapter 332, Laws 1913, amending section 171, L. O. L. Another minute examination of this question persuades us to concur with the reasoning, so convincingly expressed by Mr. Justice McCAMANT, and we therefore reaffirm what is said in the original opinion concerning the form of a bill of exceptions. To the argument that this conclusion overrules certain prior decisions, we reply by borrowing the language used by John Philpot Curran when presenting a motion for a new trial for A. H. Rowan: The high office of the court “is never so dignified as when it sees its errors and corrects them."

[2] The remaining assignments of error relate to the denial of the defendants' motion for a nonsuit and to the giving as well as the refusal to give certain instructions; and the decision of all these assignments of error depends upon whether Malloy was injured The plainwhile working for the company. tiff contends that he was engaged in work for the corporation, and that he was performing such work in compliance with orders given by Camp, the superintendent, while the defendants strenuously insist that The assignments of error relate to the refusal of the circuit court to grant the ap-working for himself and not for the comMalloy was hurt at a time when he was plication for removal to the federal court, the admission of certain testimony given by the witnesses Frank A. Doney, Philip Erickson, and William Malloy, denial of the motion for an involuntary nonsuit, the giving of specified instructions, and the refusal to give certain instructions requested by the

received in the barn.

defendants.

L. R. Webster and J. L. Conley, both of Portland (Emmons & Webster and Stapleton, Conley & Stapleton, all of Portland, on the briefs), for appellants. A. H. McCurtain, J. W. Kaste, and S. C. Spencer, all of Portland (Wilbur, Spencer & Beckett and Bauer & Greene, all of Portland, on the briefs), for respondent.

HARRIS, J. (after stating the facts as above). [1] The evidence shows that Malloy brought an action against the Marshall-Wells

ing to show that Malloy was working for pany. If there was no evidence at all tendthe Marshall-Wells Hardware Company, then the trial court erroneously instructed the jury, and the judgment must be reversed; but if there was evidence tending to show that Malloy was injured while performing work for the company, then the question of whether or not he was in truth working for the company was one of fact for the jury to determine from the evidence, and that question of fact cannot be re-examined or decided by this court. Sullivan v. Wakefield, 65 Or. 528, 535, 133 Pac. 641. It is necessary to give an account, more or less in detail, of the duties imposed upon the plaintiff, the authority exercised by Camp, the hatch and appliances used for hoisting articles to the second floor of the barn, and the wood hauled to the barn.

R. A. Camp had acted as superintendent since 1904, and had "direct charge of the office affairs, and general charge of the warehouse, the machine shop, and stables." Sev-help put it away"; but if, however, a careral of the teamsters were hired by Camp, although Harvey seems to have employed

ice of the company. The barnman called upon Camp for orders, but if Camp could not be found then Harvey was called upon. Thomas Malloy says that Camp visited the barn regularly once or twice a day with the exception of a single period covering a few weeks. W. J. Miller, who had charge of the barn in February, 1916, stated that Camp "used to come up to the barn every morning." Camp bought and sold horses for the company. Thomas Malloy testified that the hatch was enlarged pursuant to orders given by Camp. At some time subsequent to Sep-employment, from 1910 to 1912, the snatch tember 11, 1915, William Malloy built a railing around the hatch; afterwards he took

plaintiff went to the new barn he did so with the understanding that he was to move his family to the barn and live there. Thomas Malloy testified that Camp "told me that I should move my family to those rooms as quick as possible." The plaintiff moved to the apartments in the barn; but his wife and children were not able to follow him until five or six days afterwards. Thomas Malloy states that when he moved into the apartments he found "a big pile of wood," consisting of ends of boards, piled on the second floor of the barn, and next to a door leading into the apartments. William Malloy said that the pile contained "a scant cord." In connection with the incident of the plaintiff being directed to move to the new barn with his family, a very significant circumstance is found in a conversation which plaintiff claims he had with Camp. Thomas Malloy says that Camp came to the new barn one morning after the first pay day, "and looked around and saw that everything was all right," and before going away he said:

up that apparatus to take things upstairs,", 1910; and it may be added that when the William Malloy answered: "Several times; a good many times." Thomas Malloy stated that the anchor block and sling rope were "used 10 or 12 times a year." When the hay carrier was installed a piece about 30 feet in length was cut off the main rope, which was used on the carrier, and this piece was made up into four sling ropes. The original purpose was to use these sling ropes "as and for a sling rope before the track was broke down," but after the pulley was fastened to the hay carrier track one of the sling ropes was always used "for an anchor rope," for the snatch block for the reason that, according to the testimony of William Malloy, "there was no other rope." The plaintiff testified that the sling ropes were the only ropes that were "around there for any such purpose as that," and that they were "used for all kinds of purposes there in the barn." Thomas Malloy also stated that whenever a sling rope was needed for the purpose of anchoring the snatch block no particular one was selected, but "we just took whichever one came." When the plaintiff and Miller reached the second floor the plaintiff threw two or three of the sling ropes down to the first floor so that William Malloy could use one of them for anchoring the snatch block, and it was one of these ropes that was used for tying the block to the board nailed across the end of the stall. Referring to the work of hoisting articles to the second floor with the use of the two pulleys or blocks and the rope, Thomas Malloy was asked, "Was Camp ever around there when you were doing this work?" and he answered thus: "Well, I think he was sometimes; I could not say for sure though. He was there sometimes when there was hay being hoisted up and grain also."

The accident occurred about 5 o'clock Saturday afternoon. While the teamsters did not ordinarily finish their work by noon on Saturdays, still if a teamster did complete his work by noon, or at any hour in the afternoon before the usual quitting time, and returned to the barn with his horses the remainder of the day was his "own time," and he owed no further duties to the Marshall-Wells Hardware Company until the following Monday morning. William Malloy, who drove the horse when his father was hurt, worked for the company; but he had finished his work and was helping with the wood because his father asked him to help. W. J. Miller “pulled in the barn about 4 o'clock," and that was the end of his "day for Marshall-Wells"; and not having anything else to do, and wishing to help the plaintiff, Miller helped Thomas Malloy put the wood upstairs when asked by the latter. The plaintiff had not done all his chores when injured, although he "had part of them done."

It will be recalled that Camp directed the

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"Tom, there should be some arrangements made about your wages or salary here.' I and says, 'Well, it is up to you.' He said: 'Your stopped and thought it over a minute or so, salary will be $70 a month; those rooms upstairs, free wood, free water, free light, and drawed back a little bit on that. He said to me free wood.' Now, the free wood part of it, he that he didn't think I would ever have to buy any wood, that there would be all kinds of scrap wood at the warehouse; so I took it for granted that my wood would be free."

The room on the first floor, referred to as the dining room, was furnished with tables, benches, and a stove for the use of teamsters at the noon hour. The teamsters used the stove for warming themselves and for heating coffee. There were two places in the barn where wood was burned-one, the apartments where the plaintiff lived with his family; and the other, the stove used by the teamsters. With the exception of four or five loads of cordwood and slabwood purchased by the plaintiff and two sacks of coal which the company caused to be sent to the barn for the use of the teamsters, the only fuel burned by the plaintiff or the teamsters came from the warehouse. The evidence shows that there was a daily accumulation of ends of boards and scraps of wood in the warehouse where goods and wares were received and unpacked and again packed for delivery to customers. The defendants contend that, while the plaintiff and teamsters were at liberty to help themselves to the wood which accumulated in the warehouse, nevertheless they were not obliged to do it; and the defendants insist, too, that the company did not recognize any obligation to furnish wood to the plaintiff or to the teamsters. evidence shows that if at any time there was no wood on the first floor of the barn the teamsters went upstairs and took wood from the pile next to the Malloy apartments. In

The

company did not consider itself under any it up to the barn," and that he put the wood obligation to furnish wood to the plaintiff, "back along the automobile shed there." the defendants point to the fact that on one Another witness, Amos A. Abert, drove a occasion, about two or three weeks prior to truck from October, 1913, until November 5, the accident, the plaintiff hauled three or 1914, and he told the jury that he frequently four loads of wood from the warehouse in the took wood from the warehouse, to the barn, evening after working hours. For the pur- "just whenever we didn't have anything to pose of showing that the company recognized do and there was anything to take up." an obligation to furnish wood to him, the This witness also testified that at least on plaintiff points to evidence showing that at one occasion Harvey told him to take wood different times covering the period from 1910 from the warehouse to the barn and to put to the date of the accident several teamsters the wood "up in the loft." Abert further hauled wood to the barn during working stated that about three months before he left hours and pursuant to the orders of Harvey the service of the company, and while at the or Camp; and that wood was not only haul-warehouse, Camp told me to take "the wood ed to the barn by those teamsters, but was [pieces of boxes in the warehouse] up in the taken upstairs by them in compliance with barn and put it up in the loft." The load directions given by Harvey or Camp. The hauled "by orders of Mr. Camp" and the one plaintiff also explains that when he hauled hauled "by orders of Mr. Harvey" were hoistthe three or four loads after working hours ed by means of a block and tackle through he was following orders sent to him. While the hatch and onto the second floor, and then it is true that the teamsters sometimes haul- piled next to Malloy's apartments by Abert ed boxes filled with wood from the ware- and some other drivers. At least one of the house when they went to the barn for noon, loads hauled by Abert was taken to the barn it is also true that teamsters hauled wood during working hours, and the fair inference from the warehouse to the barn during work- is that the other load was also hauled during ing hours. Frank A. Doney "worked in the working hours. It appears from the testimowarehouse awhile, cleaning up part of the ny that for some indefinite period after 1910 time," and pursuant to directions given by wood hauled from the warehouse was depositJim Carr, who had control over that work, ed near the foot of the stairs in the barn. Doney "cleaned and swept around there, pick- Malloy had constructed a bin near the foot of ing up odds and ends and pieces of boards," the stairway for the purpose of holding the and "laid them aside until morning to be sent wood deposited there. It appears that some down on the elevator," for "they were to go of the teamsters had thrown some waste into to the barns." Commencing with 1910, Rex the bin. Upon discovering this waste, and to Gable worked as a teamster for about two avoid the danger of fire, Camp ordered Maland a half years, and he says that during loy to tear out the bin and clean up the floor that period the teamsters hauled wood from at that place. Malloy obeyed the order, tore the warehouse and put it under the stairway out the bin, and moved the bin and the wood in the barn, "except sometimes they was tak- upstairs; and thereafter apparently all, or at en upstairs." Philip Erickson worked as a least most, of the wood taken to the barn, teamster from April, 1913, until June, 1916, when deposited on the first floor, was placed and he testified that in the fall of 1915, at in or against the so-called auto shed. Dursome time prior to the time when Malloy ing the year 1915 the company added three was hurt, he hauled three or four loads of stories to its warehouse, making seven in all. wood from the warehouse in obedience to An unusually large quantity of ends of orders given by Harvey, and that he deposit- boards accumulated at the warehouse as ed the wood in the barn "right by the corner the result of this construction work. When behind the little auto shed"; and Erickson Thomas Malloy was hurt 10 or 15 loads had also stated that he did this hauling "as a been hauled and deposited at or near the special trip," and that he did not do it when "auto shed," and, in connection with the fact going to or from his work at night. Ed that there was such a large quantity of wood Lahey, another teamster, who was in the serv- dumped at this place on the first floor of the ice of the company for a year commencing barn, it is appropriate to call attention to a with April, 1915, testified that he hauled conversation which Thomas Malloy claims to five or six loads of wood from the warehouse have had with Harvey a short time, probably to the barn before Malloy was hurt; that three or four weeks, before the accident. In Harvey told him to haul this wood; that he the language of Thomas Malloy, while a witdid the hauling during working hours, and ness: not at the noon hour or in the evening, and that he piled the wood "right in the automobile garage." W. J. Miller worked for the defendant for a period of seven months, commencing with August 3, 1915, and he testified that prior to the time of the accident he hauled a load of wood about 11 o'clock one morning from the warehouse to the barn in obedience to directions given by Harvey "to haul

"Mr. Harvey, the shipping clerk, came over from the warehouse to the barn, and he stood around a little while, and then he says, "Tom, kinds of it.' He asked me where I was going have you got any room for wood?" I said, 'All to put it. I told him over in that corner over there (describing it **). He said he would send some one up there to the barn that would in what way he was going to send it, and he back the teams in in unloading. I asked him said he would send it in boxes and barrels and