Argued October 13, affirmed November 9, 1915. ADAMS v. CORVALLIS & E. R. CO.* (152 Pac. 504.) Master and Servant-Actions for Injuries-Questions for Jury. 1. In an employee's action for injuries sustained while reducing a carload of lumber and claimed to have been caused by the method in which the foreman directed that the work should be done, evidence held to make the question for the jury as to whether the method of performing the work adopted by the employer was different from the usual one pursued by it. [As to duty of master to servant, see note in 75 Am. St. Rep. 591.] Master and Servant-Liability for Injuries-Contributory Negligence. 2. Where employees were not permitted to perform their work in their own way, nor according to the usual method adopted by the employer, but were directed by the foreman, who represented the employer and whose orders it was their duty to obey, to follow a different method, the employer was in no position to assert that the injury sustained by one of such employees by reason of the method of doing the work was occasioned by his fault. Master and Servant-Actions for Injuries Questions for Jury. 3. Where an employer's foreman told employees who were reducing a carload of lumber that the method followed by them was too slow, and that one of them should get inside the car and shove out pieces of lumber until a sufficient amount had been removed, when the other was to signal him to stop, and then pick up and pile the lumber, and there was evidence that the employees had difficulty in hearing and understanding each other's signals, it was a question for the jury whether the method adopted by the employer was a reasonably safe one, and whether the work was carried on so as to expose the employee picking up the lumber to risks and dangers which might have been guarded against and avoided by the exercise of due care. Master and Servant-Liability for Injuries-Methods of Work. 4. In the absence of specific statutory requirements, a railroad company discharges its full duty to its employees in adopting and using standard railroad methods, rules or systems. Master and Servant-Liability for Injuries-Care Required. 5. An employer is not an insurer, but is liable for consequences not of danger, but of negligence, and the unbending test of negligence in methods, machinery and appliances is the ordinary usage of *The question of whether a servant relying upon orders is guilty of contributory negligence is discussed in note in 17 L. R. A. 604. Direct command to employee as making assumption of risk and contributory negligence questions of fact only is the subject of a note in 30 L. R. A. (N. S.) 442. On master's liability for injuries received in obeying direct command, see note in 48 L. R. A. 753. REPORTER. the business; the standard of due care being the conduct of the ordinarily prudent man. Negligence-Questions for Jury. 6. While mere proof of an accident ordinarily raises no presump tion of negligence, yet, where it is accompanied by proof of facts and circumstances from which an inference of negligence may or may not be drawn, the case must be submitted to the jury. [As to res ipsa loquitur doctrine as applicable to relation of master and servant, see note in Ann. Cas. 1914D, 386.] Master and Servant-Actions for Injuries-Burden of Proof. 7. An employee suing for injuries claimed to have been due to an unusual method of work which he was directed by the foreman to follow was bound to show, not only that the method adopted and pursued was unusual, but that it was more dangerous in itself than the ordinary one. Appeal and Error-Review-Questions of Fact. 8. Under Article VII, Section 3, of the Constitution providing that no fact tried by a jury shall be otherwise re-examined in any court unless the court can affirmatively say there is no evidence to support the verdict, where the jury has decided a question of fact on conflicting testimony, the Supreme Court is neither required nor permitted to exercise its judgment in order to determine which assertion of the parties is true. Evidence-Expert Testimony-Questions for Jury. 9. In an employee's action for injuries sustained while assisting in removing lumber from a car, and claimed to have been due to the dangerous method of doing the work adopted by the employer, the question as to the manner of removing the lumber from the car was one of common experience and knowledge which the court was warranted in submitting to the jury, and was not one upon which the testimony of experts was required to aid the jury in passing upon the question at issue. Master and Servant-Actions for Injuries-Questions for Jury. 10. According to the testimony for plaintiff in an employee's action for injuries sustained while reducing a carload of lumber, F. was handing lumber to plaintiff, when the foreman stated that that was too slow a method of removing the lumber; that F. should get inside the car and shove out pieces of lumber; that plaintiff should stand aside and keep tally as the pieces fell, and, when a sufficient amount had been removed, signal F. to stop, and, upon receiving his answer, pick the lumber up and pile it. Plaintiff and F. protested against this method, but complied with the order. After a number of sticks had been thrown out plaintiff called F. to stop, but F., being uncertain whether he heard a call, answered back twice, and, receiving no reply, threw out another piece, striking plaintiff, who had started to pile up the lumber. Plaintiff testified that he heard F. answer, but could not say what he said. Held, that plaintiff was not negligent as a matter of law, as the evidence showed that it was not easy for the men to hear each other's signals, and it was necessary for plaintiff to accept F.'s response to his signal or cause the very delay which the foreman's order was designed to obviate. [As to reasonableness of rule promulgated by master for guid ance of servant as question of law or fact, see note in Ann. Cas. 1913C, 187.] Master and Servant-Actions for Injuries-Burden of Proof. 11. A servant who disobeys the orders of his superior takes upon himself the burden of showing the lawful reason for such disobedience. Master and Servant-Liability for Injuries-Contributory Negligence -Disobedience of Orders. 12. A servant is not guilty of contributory negligence in obeying the orders of his master, unless the risk is so great that a person of reasonable prudence under the same circumstances would have refused to obey. Master and Servant-Actions for Injuries Instructions. 13. In an employee's action for injuries sustained while assisting in reducing a carload of lumber and claimed to have been caused by the unusual and dangerous method of doing the work adopted by the employer's foreman, the instructions held to have fairly submitted the question to the jury. Master and Servant-Liability for Injuries-Assumption of Risk. 14. Independent of the statute, a servant assumes the ordinary risks and dangers incident to his employment. Master and Servant-Actions for Injuries-Presumptions-Assumption of Risk. 15. Where the jury finds an employer negligent, assumption of risk is not presumed. Master and Servant-Liability for Injuries-Assumption of Risk. 16. An employee did not assume risks occasioned by the negli gence of his employer. Master and Servant-Liability for Injuries-Assumption of Risk. 17. An employee did not assume the risk of injury in obeying the orders of his foreman, unless a person of ordinary prudence would not have done so. Master and Servant-Liability for Injuries-Contributory Negligence Distinguished from Assumption of Risk. 18. In an employee's action for injuries sustained while assisting in reducing a carload of lumber, it was plaintiff's claim that against the protests of him and F. the foreman directed F. to get in the car, where he could not see plaintiff, and shove out pieces of lumber until signaled by plaintiff to stop, when plaintiff was to pile up the lumber; that he and F. had difficulty in understanding each other's signals, and that he signaled F. to stop, but was injured by another piece thrown out by F. It was defendant's claim that plaintiff carelessly and negligently, without giving F. the signal to stop, and in violation of instructions, commenced picking up the lumber while F. was throwing it out. Held, that this dispute was properly tried out as a question of contributory negligence, and not as one of assumption of risk. From Linn: PERCY R. KELLY, Judge. Department 2. Statement by MR. JUSTICE BEAN. This is an action by George O. Adams against the Corvallis & Eastern Railroad Company, for damages for personal injuries claimed to have been received by plaintiff while in the employ of the defendant company. The cause was tried before a jury, resulting in a verdict and judgment in favor of plaintiff in the sum of $4,000, from which judgment defendant appeals. On April 25, 1913, plaintiff and one Clyde Freeman were employed by the Corvallis & Eastern Railroad Company in its car-shops at Albany, Linn County, Oregon. On that date they were directed by George Hoflich, the outside foreman, to reduce a carload of lumber then standing in the car-shops by removing a sufficient quantity of lumber to bring the load within the proper carrying capacity. They undertook to remove the lumber from the car in the following man ner: "Freeman standing at the edge of the door of the car would slide out a stick of lumber, and as the same approached the ground it would be received by Adams and by him placed in a pile on the ground." The car was an ordinary furniture car, and was loaded with lumber to within about 10 inches of the top and some 10 or 12 feet from the ground. Plaintiff claims, and the evidence tended to show, that after a number of pieces of lumber had been removed George Hoflich, the outside foreman of the defendant company, ordered the work to proceed in a different manner, to wit, Freeman was to get inside the car and shove out pieces of lumber. Adams was to stand by, apart from the lumber, and keep tally as they fell. When a sufficient amount had been removed, he was to give a signal to Freeman to stop, and upon receiving his answer Adams was to pick up the lumber and pile it. This change was made in order to increase the speed. Plaintiff and Freeman protested against the proposed method, but the foreman insisted, whereupon they complied with his order. After a number of sticks had been thrown out plaintiff called Freeman, who, uncertain whether he had heard the call, answered back twice, and, receiving no reply, threw out another piece. On hearing Freeman call, in response to him and pursuant to the given orders, Adams went forward to remove the lumber, and was struck by the piece thrown out by Freeman. Plaintiff claims that the defendant was negligent in the following particulars: (1) In keeping in its employ as outside foreman, George Hoflich, because he was incompetent and inexperienced; (2) that the method of work directed by him was dangerous and unsafe; and (3) "that defendant, through its agent and servant, the said George Hoflich, ordered plaintiff and the said Clyde Freeman to perform their work by an unsafe method, against their objections, and notwithstanding a safe method, as hereinbefore described, was practicable, as defendant well knew." The main charge of negligence is as follows: "That while the plaintiff and the said Clyde Freeman were engaged in reducing the said car of lumber in a safe manner, to wit, by the said Clyde Freeman, within the car, passing out to the plaintiff one piece of lumber at a time, the defendant then and there, through its agent and servant, the said outside foreman, George Hoflich, negligently ordered the plaintiff and the said Clyde Freeman to proceed with the work in another manner, to wit, by the said Clyde Freeman throwing out a number of pieces in succession until |