Daily capital journal. (Salem, Oregon) 1903-1919, 1911-08-08
OREGON SUPREME COURT DECISIONS
Fall Published BY Courtesy Of F. A. Turner, Reporter Of the
Supreme Court


tanned with reasonably careful OBJ
servation. Whether either party act
ed or not as a reasonably prudent
and careful person would act under
like circumstances and so measured
up to the standard Of care and was
blameless >or fell short of that stand
ard and was guilty Of either primary
or contributory negligence is a ques-
tion for the jury. Palmer " Port
land Railway Light & Power COM
pany, 1OS Pac. 211.
We cannot say as a matter Of law
that the defendants were negligent in
placing the pole in the position de-
scribed by the evidence. 1t is for the
jury to Judge under all the circum-
which would be performed in that
manner or not by reasonably care
full and prudent person in charge Of
the work. On the other hand we
cannot say as a matter Of law that
the decedent was guilty of contribu-
tory negligence, defeating his recov-
cry, by going about his work in the
manner in which he did and expos
ing himself In the place where he
was killed. 1t is for the jury to
place themselves in the situation dis
closed by the testimony and deter
mine whether or not either party
acted with reasonable care and pru-
dence under all the circumstances
Different triers of the fact, whether
judges or jurors, might placN various
estimates upon the conduct of the
parties as delineated in this case;
but 1t is only when no other reason
able conclusion can be drawn from
the testimony that the court is au-
thorized to say judicially there Is no
negligence. Under all other circum-
stances the question must be left to
the jury. On the question of direct
ing a verdict we are of the opinion
that the court committed no error
and acted properly in submitting the
cause to the jury.
From such cases as st. Louis V.
Dupree, 1O5 S. W. S7S; Louisville V.
Lumkin, 1914 S. w. 31S and others
cited in their brief, defendants argue
that the deceased was guilty of con-
tributory negligence in going near
dangerous machinery or into a dan
gerous place without giving notice to
the people in charge so that they
might take measures for his safety
This question is not raised by the as
signments Of error and we cannot
presume that the court did not give
the jury suitable instructions in that
respect. The cases cited, however,
are easily distinguishable from the
one in hand. They are all instances
where a car inspector, engineer or
other like railway employe perfectly
familiar with the situation and the |
operation Of the trains, went under a
car or locomotive without setting
any warning signal and knowing that
me cars were apt to be moved at any
lime To move the cars and engine
was, in each case, the ordinary
course OF business that anyone might |
expect. Here the deceased had no
reason to anticipate that the usual
course Of operations was for the fol-
lower to fall as 1t did. Indeed, the
EFFORT Of the defendant has been to
show that such a result was unex-
pected and hence mere accident.
II, for instance, the deceased had |
stolen up unnoticed and put his hand
IN the head Of the pile so that the
descending hammer crushed his fin
gers, the reasoning of the precedents
cited by the defendants would apply. |
or the fall of the hammer is the or
hnary course of operations with
'uch machine. Hence, in Nur
Judgment, the cases cited are not in
)oint here.
Bearing in mind that the negli-
renee attributed to the defendants by
he complaint consisted in wrong
ully, unlawfully, recklessly and
,arelessly placing the pole against
he west edge of the side walk in q
areless and unguarded position and
Without fastening the same, with ona
nd thereof upon the ground and the
'tner end leaning against the side
walk we proceed to consider an
'ther assignment of error based
.pon the admissibility of certain tes-
lmony allowed to go to the iurv
he record shows that the court
ver the objection of the defendants
witness for the pIaintiff
o testify in substance that he had
.9rked there previously and know
ng the danger, jumped and ran when
omeone shouted look out, but that
lie decedent did not know the dan
er OF cave in; and being further
alled upon to explain his statement
ne witness answered. over the OH
ection of the defendant. as incomne-
ent' irrelevant and immaterial. that
'hile he was there on a previous oc-
aston eNcavating one bent on the
lue walk and cribbiHg caved and
ropped hat so that a man couId NOT
ave any chance to get away and for
nat reason, going back again in the
anne work in a different place. he
'as naturally more or less afraid
nu on the look out. He further ex-
iained that the point where the
!ue walk fell on the previous occa-
ION was two or three bents away
'om where they were working at the
me the deceased met his death. II
as wrong to admit this testimony
the consideration Of the jury. II
not charged as a ground of negli-
enee against the defendants here
nat they were responsible in any
ay Tor the condition OF the side
ak, or that 1t contributed in any
eagree to the danger of the situation
nat they negligently chose an inse-
IRE side walk as a support for the
blower by reason OF which II fell !
pom the deceased, is not laid To the
iarge OF the defendants: but 10
rove this is what the jury might
lturally have sunnosad No.. -