Bigelow v. Columbia Gold Mining Co., 108 P. 56

Bigelow v. Columbia Gold Mining Co.

108 P. 56 | Or. | 1909

Lead Opinion

Mr. Justice Eakin

delivered the opinion of the court.

1. After argument, of the case in this court plaintiff filed a motion to affirm the judgment, for the reason that the only bill of exceptions filed is the entire transcript of the stenographer’s notes taken at the trial, which is not a bill of exceptions contemplated by statute. The first assignment of error is that the court erred in denying defendant’s motion for a nonsuit. The consideration of this assignment requires that the bill of exceptions shall contain all the evidence before the court at the time the motion was made: Schaefer v. Stein, 29 Or. 147 (45 Pac. 301). The same is true of the second assignment of error, namely, the motion for a directed verdict. Therefore, for consideration of these two questions, the bill of exceptions is sufficient, and the motion must be denied. But as to the other exceptions the bill does not comply with the statute (Section 171, B. & C. Comp), which provides that “the objection shall be stated with so much of the evidence or other matter as is necessary to explain it, but no more.” This question has been decided by this court so often that it seems needless to review it again. In the case of Hamilton & Rourke v. Gordon; 22 Or. 561 (30 Pac. 496), the court in passing on this question says: “A motion was filed in this court by respondents to strike the bill of exceptions from the files, because it is nothing but a copy in longhand of the reporter’s notes of the trial. We are not aware of any *456rule of law or practice authorizing us to strike from the files that part of the transcript signed and allowed by the trial judge, and made a part of the record in the court below as a bill of exceptions; but we are equally certain that there is no rule of law requiring us to examine, in search of errors, such an alleged bill of exceptions, unless it is prepared in the manner provided by law. We have heretofore, in some instances, when it was difficult to clearly ascertain the question sought to be presented, declined to do so, and shall follow the same practice in the future when the occasion presents itself.” It is imperatively necessary that the exceptions be distinctly stated in the bill, and that about each exception be grouped sufficient facts to show the nature and influence of the ruling complained of: Nosler v. Coos Bay Nav. Co., 40 Or. 805 (63 Pac. 1050: 64 Pac. 855) ; Eaton v. Oregon R. & N. Co. 22 Or. 501 (30 Pac. 311). For a suggestion to the form of the statement of facts in the bill of exceptions, see Tucker v. Salem, F. & M. Co. 15 Or. 585 (16 Pac. 426). And it is said in Hedin v. Railway Co. 26 Or. 155 (37 Pac. 540) : “It is generally deemed essential that all evidence introduced prior to the motion for a nonsuit should be incorporated in a bill of exceptions when the order of the court overruling or sustaining such a motion .is brought up for review * * [but that] is no reason why other questions, and the particular errors relied upon, should not be separately stated and pointed out”: Eaton v. Oregon R. & N. Co.. 22 Or. 501 (30 Pac. 311). This is the only question involved in Eaton v. Oregon R. & N. Co. 22 Or. 501 (30 Pac. 311), where the whole subject is thoroughly reviewed by Mr. Justice Bean, and Mr. Chief Justice Moore in Oldland v. Oregon Coal & N. Co. (decided June 15, 1909) 102 Pac. 596, says: “We believe that an average of iy% pages of testimony, or of a statement of the substance thereof, would have been all that was required to explain any exception saved.” Therefore, *457as to all the assignments of error, excepting the first two, there is no bill of exceptions before us, and they will not be considered.

2. The grounds of the motion for a judgment of non-suit are: (1) That the evidence does not show any negligence on the part of defendant; (2) that it does show an assumption of risk by plaintiff; (3) contributory negligence by plaintiff; (4) and that it is not shown that plaintiff came in contact with the set screw. The negligence of defendant relied on by plaintiff is that the set screw was not reasonably safeguarded, but had a loose, frail, and insufficient guard, and yet had the appearance of being safe. The evidence tends to show that the set screw was dangerous if not safeguarded; that about a month before the accident, Culligan, who also operated this pump, one shift during the time prior to the injury, and who was not a mechanic, at his own suggestion and for his own protection, placed a guard over the set screw, which was made of light sheet iron, fastened at one side to one of the boxing bolts, and was unsupported at the other side; that he cut it out with a pair of shears, and shaped it with his hands, and it extended down over the set screw about even with the lower side of the shaft. He said he put it there because he felt afraid of the set screw when oiling the cups on the boxing, and he felt perfectly safe when it was on. After the accident it appeared that the guard had been torn off, and plaintiff’s pants, coat, and shirt had been wound around the shaft; his coat and shirt were next to the set screw and his pants toward the other end. Plaintiff testifies that he thought the guard was safe, and relied on it. We think it cannot be said, as a matter of law, that under existing conditions the set screw was reasonably safeguarded, or that plaintiff assumed the risk incident thereto. It was for the jury to say whether the set screw was reasonably safeguarded, and whether plaintiff was justified in assuming that it was safe.

*4583. The only contributory negligence disclosed by the evidence, or charged against plaintiff, consists in wearing a coat while working about the machine, and in taking an unsafe place to work. He wore an ordinary, close-fitting, buttoned coat. He says he always wore it while at work, because it was uncomfortably cold down there, even with the coat on.' He also testifies that it was necessary for him to stand On the shaft side of the pump, when adjusting the cups; that.it was the safest place, and the only convenient and customary way. Although there was evidence tending to show that the oil cups, at the top of the crank shaft, could have been adjusted from the other side of the pump with safety, yet it was for the jury to say whether it was negligence for him to wear a coat or to regulate the oilers from the shaft side of the pump.

4. In the brief, counsel for defendant urge that the evidence does not establish that plaintiff’s clothes caught on the set screw, and that, if he failed to prove that he was hurt in the manner alleged, he cannot recover. The allegation of the complaint is that the plaintiff was caught upon said revolving, shaft by said set screw. The answer admits this in the following language: “Plaintiff, while working around the said machinery, and while attempting to oil the same, reached over the said pump, thereby allowing his clothing to drop down on the shaft and under the guard so that the same came in contact with the said set screw * * and he was.drawn into the said machine.” This admission renders unnecessary any proof upon that point, and we find that the motion for judgment of nonsuit was properly denied, and the evidence for the defense is not sufficient, on any of these points, to justify the court in directing a verdict for the defendant.

Judgment is affirmed. Affirmed.

Decided September 21, 1909.

Dissenting Opinion

On Petition for Rehearing.

[103 Pac. 1007.]

Mr. Justice Eakin

delivered the opinion of the court.

5. By the motion for rehearing, counsel urge: That, as the court must read the evidence for the consideration of the motion for nonsuit, therefore it ought to consider the errors disclosed by the transcript of the evidence; that some of the exceptions relate to general principles of law and can be passed upon independently of the evidence; and that appellant has stated in his brief sufficient of the evidence for the consideration of the exceptions relied upon, and, respondent having made no objections to such statement, therefore appellant’s brief should be taken as the bill of exceptions. The effect of these contentions is that the court should permit counsel to waive the bill of exceptions or stipulate to submit the case on the transcript of the evidence. The bill of exceptions is required by the statute, and not by a rule of the court, as counsel suggests. This is a plain statute and has been construed and explained by this court in many cases.

6. Counsel for respondent is not called upon to object to the statements of fact made in his adversary’s brief, and such statements cannot be taken as assented to. The exceptions not considered by the court were such as could not be raised in this court except by the bill of exceptions.

The motion for rehearing is denied.

Affirmed: Rehearing Denied.