¶1dissenting.
¶2I cannot agree with the majority’s decision that it is a question of fact whether or not the work plaintiff was doing involved “risk or danger” within the purview of the Employers’ Liability Act.
¶3The defect in the construction of the ladder created a risk of falling which is an uncommon risk not present in most other types of work and, therefore, would have brought defendant within the meaning of OES 654.305 if the injury in this case had resulted in falling from the ladder.
¶4The defect in the construction of the ladder also created the risk of bumping one’s leg in climbing the ladder. But this latter risk is not of a character which would subject the employee to an uncommon danger within the meaning of the Employers’ Liability Law. Anri this is so even though, as the majority suggests, the risk of falling increases the risk of bumping one’s knees.
¶5Because performance of a particular job involves *481a likelihood of frequent bodily contact does not necessarily mean that the work involves risk or danger. In order for work to involve risk or danger there must be an uncommon risk of substantial injury, not merely of bodily contact.
¶6Short v. Federated Livestock Corp., 235 Or 81, 383 P2d 1016 (1963), involved the same distinction. The plaintiff was required to go into the hog pens to feed brood sows weighing between 400 and 600 pounds. The hogs were ravenously hungry and customarily crowded around, bumped into and chased plaintiff. Witnesses testified that it is dangerous for a feeder to enter a pen with brood sows. This contact had never injured plaintiff before; just as the plaintiff here had never been injured before by the bumps he had incurred using the ladder. In the Shortcase the plaintiff’s knee was injured by a push or bump from one of the sows. We held, as a matter of law, that such work did not involve risk or danger.
¶7O’Connell, J., joins in this dissent.