*1 Cоoper et Power Co. al. North Coast April 20, Argued January 16, rehearing affirmed March denied 1926. POWER SADIE COOPER v. NORTH COAST COMPANY 317.) 665; 245 Pac. hy Jury Appeal not to Re-examined Tried are be and Error—Pacts Competent Supported by by Evidence Court if Plaintiff’s Case is VII, (Const., §3c). , Art. by compe- complaint plaintiff proves 1. If material averments by it jury unless evidence, no court tried tent can re-examine facts verdict, say affirmatively support to can there'is no evidence by Constitution, VII, Section 3c. provided as Article Trial. for nonsuit takes granting of motion Direction of verdict or 2. common law. plaee demurrer to evidence under Credibility Weigh Evidence Determine Trial—Court Does not Every Verdict, Ruling and Motion for Directed in on Witnesses Plaintiff’s Pavor. Inference is Made in Reasonable verdict, court disclosing of for directed defendant’s motion 3. witnesses, credibility and weigh evidence nor determine does testimony plain- in every arising is made reasonable inference tiff’s favor. Contributory Negligence Jury Electricity—Negligence for Held and by Death Caused Contact With Electric in for Child’s Action (Const., VII, §3e). Art. Wires son, coming death minor In action for caused contact 4. strung company of defendant over a tree with electric wires on contributory negligence questions held picnic grounds, Constitution, VII, 3e, precluding Article Section jury, view by jury affirmatively say tried unless court can of facts review support to verdict. there no evidence Electricity—Electric Company Duty Against is Under to Guard Con- Anticipated. tingency Reasonably duty, power company is under in construction 5. Electric line, provide protection guard power to such as will maintenance may reasonably any contingency anticipated. be against Right Electricity—Child to have Electrocuted Held to Climb Tree Used for Picnics. Premises on tract, right over which electric private had 6. Where generally wires, publie used picnicking, stretch its to 1220; children, 5. 2. See Duty, A. see notes L. R. R. stringing C. L. 11 L. 1067. See, electric R. also, A. wires, (N. S.) R. C. L. 449; guard against 25 L. R. A. danger (N. S.) Power et ah. v. North Coast only unsigned trespass premises on shack was aimed notice against picnic on land company, electric minor child .had death, causing climb tree- over which electric wires stretched. *2 Electricity—Electric Company Anticipate General Proba- Should bility Though Danger, Way of not Accident Precise Which Might Occur. general 7. If probability there is a danger from construction and power lines, company duty anticipate maintenance is under it, and it is not necessary precise way. it should know Negligence. Degree 8. required graduated knowledge, care child
discretion, maturity experience. and Negligence—Contributory Negligence Jury, Though Question Undisputed Might Pacts are if Reasonable Minds Differ. Contributory 9. only as a matter of law is established where no material fact is left in doubt and no in- other reasonable ference can be proof by drawn from jury, and where facts are disputed, question remains jury, if might reasonable minds draw different conclusions. J.,
Electricity, p. 20 C. n. p. 351, n. 57. From Judge. Columbia: J. A. Eakin, Department 2. appeal judgment
This is an from a in favor of plaintiff recovery damag’es for tlie in tbe snm of May on account of $4,000, tbe death on 24, 1922, Cooper, only Walter years, her son, a of twelve by coming in contact with uninsulated electric wires belonging to tbe defendant, North Coast Power Com- pany, corporation. corporation operates defendant
Tbe owns and an power electric line between tbe towns of Goble County, Oregon, oper- Columbia Rainier, and, such George Bingle, its ation, codefendant, as its lawful representative, at all times herein mentioned bad charge and sole control of tbe construction and main- of tbe and of line, manufacture, tenance tbe trans- 20 R. C. L. 8. See Power v. North Coast thereby. electricity On
mission distribution of May referred 24, 1922, accident above the date of the corporation engaged in the to, the defendant power its manufacture and means of transmission, electricity voltage. high dangerous of a line, Plaintiff avers at the time of construction that, power corporation, stand- there was line ing on which Tract,” land known as the “Newsome yew frequented by public, large tract outspreading erеc- that, in the broad, branches; carelessly power con- tion of defendants line, the manner three of its structed the line such passed with the tree electric wires on direct line abandoned shack that had been over the roof of an branches; underneath and that, constructed its give wires, order to clearance to company topped immedi- the above-mentioned tree *3 stump leaving ately wires, under the electric two top, eight the sixteen feet and inches diameter at spreading' high, large, four and with and inches feet reaching body of as out the the tree branches ground. feet from the She avers what she low as six duty of defendants in reference was the the сlaims of lines, and maintenance construction their the performance thereof; the and their power tree and shack were attractive to lines, the trap was veritable death and children, “and public gener- grave danger to the members the May Cooper, ally”; Walter that, 24, 1922, twenty-five boys girls company about other and with pupils, age, School, of the Rainier Public of similar patron together their teacher and a of the with pub- upon Tract,” as the went “Newsome school, the Rainier accustomed do, lic residents and Cooper North Coast Power purpose picknicldng spending day for the and sport games. in childish and immediately upon entering grounds, “That, said together Cooper, deceased, Walter a number yew boys age, of other of like said attracted tree accessibility position, appearance, and its unusual being and ease of climbed, entered the branches top; thereof and climbed that the electric wires easily aforementioned were not the deceased said discernible, and that ** ignorant presence * * 'ignorant and wires, of the character danger of and electric currents and electric wires appreciate presence did and not know nor dan- nor ger of said electric wires the electric current being thereby.” transhhtted plaintiff alleges upon gaining top that, stump yew tree, lad came in contact company’s with the defendant wires, electric and, as instantly a result, was killed. She avers that her Cooper, husband, the father of Walter dead; boy would have labored and earned until he at- majority, tained his would she have been earnings. entitled to receive such corporation, answering, The defendant admits ownership power construction line, its loca- tion the “Newsome Tract,” across and over yew stump; abandoned shack and and for a fur- (cid:127) separate ther and it defense, avers that Walter
Cooper, boys girls, with other went any right Newsome tract of land without authority knowledge and without the or consent of *4 Mary the or of defendant, Newsome, owner of the Cooper tract of the that Walter land; and other young people, with were him, warned and go instructed not to near electric wires the the of or defendant come to in contact therewith, the GG6 North Power et al. Coast voltage dangerous such that wires carried a reason electricity; that the lines constructed boy’s carefully, maintained death was and that the solely negligence going through caused “in own upon premises way of defend- said the disregarding warning and in not to touch ant, the get the with, in contact near wires of and come or up yew climbing and in tree and defendant, coming touching in contact with one of the defend- George Ringle ant’s wires.” filed similar answer. plaintiff’s At the conclusion of evidence, requested peremptorily, in- defendants to court, jury struct to return verdict in their favor upon ground part on the was not and that evidence shown, contributory guilty the deceased was showed negligence. parties motion denied. Both appeal assign On defendants a number rested. rely chiefly alleged but insuffi- errors, support plaintiff’s ciency cause. the evidence
Aeeirmed. Company appellant North Power there For Coast Beckett, Wilbur, over the name of Messrs. a was brief Oppenheimer, argument by with an oral & Howell Mr. H. B. Beckett. George Ringle appellant there was a brief over'
For Langhorne Metzger, Hayden, & Messrs. the name by Metzger. argument D. Mr. F. an oral argu- respondent brief oral there was For Metsker. B. ment Mr. Glen The motion filed J. 1. defendants BROWN, sufficiency plaintiff’s challenges the evidence alleged neglect jury. question their take the They ad- effect, evidence assert, further *5 Cooper v. North Coast Power Co. by plaintiff chiced establishes of the the contributing injury deceased to the sustained by recovery plaintiff, him. Before a can be the had, by competent prove some evidence, must the material complaint. plaintiff of averments her When the has requirement, notwithstanding any met that we view may regarding probative weight entertain of testimony, required imperative we are to heed this of direction our law: fundamental * ® right jury “In law, actions at trial preserved, jury shall be and no fact tried shall any otherwise be re-examined in unless the court court state, of this affirmatively say can there evi- is no support dence to the verdict.” Section Art. 3-C, Const. VII, Or.
3.2, With all due deference to the constitutional presents question command, the motion a difficult determination. The direction of a verdict, or granting place of a motion nonsuit, takes the of a demurrer to the evidence under the ancient common- (190 Barzee, 96 law rules: Herrick v. Or. 357 Pac. Thompson 141), local citations; on Trials Eng. ed.), Am. & & § 1524; 6 PI. Pr. dis In the question, position this we must adhere rule° weigh court does not that the the evidence nor deter credibility pur For mine witnesses. pose entirely motion, witnesses are credi speak nothing but the truth. ble, Furthermore, considering every this motion, reasonable intend legitimate every fair and ment inference which testimony from the record must can arise be made plaintiff: Farrin in favor State Industrial Com., 104 984), Or. Acc. and local citations. Cooper of his death, time Walter
At the was of the twenty years days. age twelve- He was a Or.—42 v. North Coast Power Co. et al. well-developed boy, good average health, and of intelligence. weighed ninety-six pounds He and his height May was four feet eleven inches. On day boy, accident, the *6 pupils pub- teacher and certain other Rainier of the gathered picnic purposes lic school, for оn the tract body known as the “Newsome a of or Tract,” five six acres of brush and timber lands situate within the corporate of town limits the of Rainier and between Highway Spokane, the Columbia River and the Port- & land Seattle Railroad, about one and one-half par- acres of which were cleared. The tract been had tially by inclosed in former a fence the times, but disrepair. fence fallen into had On land one the side, by only. had been inclosed a brush fence In the clearing edge upon high- near one that bordered the way yew being topped stood a lone tree which, before by height fifty the had defendants, attained the of many widespreading feet and bore branches. After stump had cut down the tree been to a sixteen feet height, many four inches in and there still remained widespreading being especially branches, and, limbed climbing, stump very this was attractive to chil- vicinity "dren. In the the tree was brook where exceptionally good quality drinking an flowed partially by tree, Near the and water. covered some branches, was a small its uninhabited shack with By by reason of the attraction lean-to. afforded beauty water, and the shade the surround- the grounds public ings, camp- were used picnics. testimony It ing is shown that, persons many gathered to time, time there. injured, place time had been theAt “camp-stove, supplied table and benches.” Hinebaugh, the testified teacher, Elizabeth Cooper Power. et al. North Coast very pretty place, near Tract” “a “Newsome * * enough teachers so the to the school town, close get session.” for the afternoon back could grounds Upon picnic school at the their arrival sports. pursuit of various children scattered hold the others took some of Walter yew swung themselves a limb tree, entered from there shack, roof of the growing climbed from the tree. Walter branches out height man- unknown where, in some thereof, to the com- came into contact with the ner, he carrying pany’s volts electrical 6,600 electric wire instantly energy killed. and was or tend- direct evidence, is no circumstantial, Thеre knew ing warned, ever was that Walter to show danger knew or that he ever situation, located uninsulated or wires were *7 vicinity any evidence of the tree. Nor is there the tending that he to show ever touched the wires with purposely or the hands came contact with his he a mark his the However, neck, wires. bore legs cap on was and burned, wore that occasion he shock. an electric evidence bore acquainted that he Davis testified was Charles premises the “Newsome Tract”; known as that a the day he for the after the accident went there two or examining purpose into condition of same. the the testified: further He fencing. very On side next little “There highway boards; there was it was brush highway, steps space to the open from the cabin an open space, fencing way, no at all.” an part of the regard fence, testified: the brush he growth brush; scrub some brush natural
“Just laid down. cut and been had (cid:127) Cooper v. North Coast Power Co. steps highway “Q. Other than from down any to the house was there other trails or road that highway? led from the through “A.. Yes, sir, is a trail there went place. “Q. From to where? where highway. From Rainier, “A. have out to the Since then * * good I through many goes it traveled times. It right by there house. any leading “Q. Was there or other trail road into the tract? through “A. There is a trail comes rail- put people road; a board bank; across walk past up plaсe.”
.from the railroad this power The line was in 1920. constructed wit- ness John Crank testified that he had been a resident years of Rainier for fifteen and was familiar with occupancy the character of the Newsome things, Among other tract. he swore that: every “I on week there and that so, was. way generally go through home; a near some’ ‘New- ** (cid:127) ” place. campers Speaking premises, he said: fifty suppose, “I seen them there I times, have ** I worked Prescott. before they would be with “Q. Where reference to this and tree? house * * little “A. There distance between the tree edge goes woods where stream down. Generally there, see them sometimes three or four bunches.” cаmpers, testifying toas
Further the witness said: *8 seen four or five fires at time.” “I have one testimony is some in the There record to power line constructed that and has effect George Ringle maintained for and been representative North codefendant, Coast aas 661 North v. Coast Power Co. Company, alleged, represen- Power as as that, yew company, of such tative he cut caused tree or topped suspended power to be the wires of the top across the shack and over yew stump. testimony tree further shows that Eingle, company, the defendant in behalf of has inspected every the lines twice two about months necessary A its since construction. conclusion from testimоny the record is that there some the de- that ought knew, known, fendants have there danger arising was some attraction to children power out construction maintenance of its yew stump prem- line over the on the Newsome precaution ises, and should taken have some for their protection. foregoing In view of the constitutional provision, supports we hold that the record the ver- holding dict and the trial court. denying
The trial court in defendants’ motion for a directed verdict followed the doctrine announced leading case to the effect an electric com anticipate pany boys must will climb trees and injured by may carrying be uninsulated wires dan gerous energy: Templе currents of electric v. Mc Light City & Comb Electric Power 89 1 Co., Miss. Rep. (42 119 Am. South. St. 10 698, Ann. Cas. (N. S.) 449). Among L. R. A. 11 cases Springfield are: Williams effect v.
similar
Gas etc.
(202
1);
1
W.
Benton
274 Mo.
S.
v.
Co.,
North Caro
(81
448);
165 N.
354
Public
C.
S.
Co.,
Service
E.
lina
(77
Gas
Co.,
v. Wilkes-Barre
Mullen
etc.
Pa. 54
1108);
v.
Power
Sweeten
Atl.
etc. Co.,
Pacific
1054); Godfrey
(153
City
Kansas
Wash.
Light
233);
Co.,
Among many upon by the cases relied cited and McCaffrey contrary v. Con defendants are: to the (114 80 17 395, cord N. H. 45 Atl. Co., Electric Wetherby 813); Elec A. L. R. Twin Gas & State (75 25 1092, Co., tric 83 189 21 Ann. Atl. Cas. 8, Vt. (N. Mayfield Light S.) 1220); R. A. L. Water & Ky. (111 Am. St. Webb, 712, 129 395 W. 130 S. Rep. (N. S.) 179); Newv. 18 L. A. Johnston 469, R. Light (113 526, Neb. 27 N. W. Co., Omaha Electric 78 Washington S.) (N. 435); L. R. Graves v. 17 A. 11 44 675 Pac. 956, Water Powеr Co., Wash. 452). (N. S.) L. R. A. duty
5. in the con It was the the defendants power pro line struction and to maintenance guard any protection against as vide such would reasonably anticipated. contingency to be Temple City v. McComb Electric Prom a note Light 1 119 Co., & Power Miss. South. 874, Rep. A. R. Ann. Cas. L. Am. St. S.) quote following language 449), (N. we quite pertinent to cause issue: seems duty guard against danger to chil- to the “As placing wires, no rule can electric be enunci- dren accepted by all courts. As in the be that would ated ‘turntable’ cases involving and those other ‘attrac- are in the authorities nuisances,’ irreconcilable tive that reason seem, however, It would conflict. support humanity, the rule laid down in the alike, dеaling extremely those with such an case that above electricity agency stringing dangerous should, reasonably ‘with the as places probable it where wires their that charged go, very high- be will children protect degree of skill care’ to the children est v. North Coast Power Co. injury vicinity places, in the such even though may they trespassers.” be See, also, C. J. 353. we think However, decedent had law go upon
ful the Newsome land climb *10 property the tree; that it was not the of the defend company ant and therefore, far as so the decedent just he concerned, had a clear to be where he was at the he met v. Wolf, Admr., time his death: supra; Turnidge Thompson, Ford, Recr., 89 Or. v. 281). Joseph P. In the latter case, Turnidge trаveling was killed while over field owned Fuqua. trespass Amos A number of had notices posted upon premises, reading*: been undersigned, hereby any “We, the do tres- forbid passing hunting premises. or our This means you.” trespass The field was and the inclosed, notices were duly signed. During signers one of the trial, of the notice testified that the notice applied neighbors, “never to our never to seemed me.” question discussing as to whether or not Turnidge trespasser
deceased was a at he the time speaking through killed, this court, Mr. Justice said: Harris, trespass posted “It is true notices were on the
premises and we think decedent should be deemed trespasser neighbors for the reason that had been Fuqua proрerty to cross the accustomed as a short to Willamina; and, cut out Leslie moreover, did not ” ‘applied neighbors.’ intend that the notices to our unsigned trespass an bar, In the case notice appeared the shack. The defendants direct at- to that notice. But Ira tention Mrs. Newsome, New- Power Co. et al. North Coast . posted lie had the notice son, some’s testified notifying agent purpose his mother’s as company premises. keep electric the testimony off invaded the shows that the had holdings trespasser, afterwards ac- Newsome quired as but (cid:127) poles their and construct an easement to set premises. And witness also their line over the application others testified that the notice had no company. than point Ford, Wolf, Admr., A case much App. George plaintiff’s Ohio Recr., Wolf, years age, sport engaged in eleven while decedent, boys, in front climbed into a shade tree with other property of located on Sehweier, William of the one curbing, public the sidewalk and street, between of the tree Ohio. Some limbs Mansfield, ground. Au four five feet On were within light belonging gust an electric wire 13, 1915, *11 company, carrying high voltage of defendant electricity, twenty in that tree feet from
was located body ground feet from of and three the the tree. the body point the the of wire near the of theAt knew uninsulated. But the decedent it become had any impairment climbing nothing in the wire. contact with came into tree he the uninsulated in portion wire, resulted instant which death. charging jury, court, trial case, In that theory adopted for which the defendants contend charge case. The instant follows: in the you inquire why plain- will further as to “Then you tree, said and if intestate further tiff’s was in decedent said tree that the without invi- find part permission or the defendant tation company company, that the defendant no would had anticipate that children to believe reason tree and come into into said contact with said climb v. North Coast Power and that wire, the decedent knew that the wire through property said tree was the defendant company, you рlaintiff’s find that intestate took hold said and came in wire contact with it, knowing- property it was the of the defendant com- pany, charge you plaintiff’s George that intestate, trespasser Wolf, his own act made himself a against company, you plain- if so find, tiff cannot recover.” plaintiff, appealing,
The assigned error the court charging jury Appeals as noted. Court held instruction to be erroneous, and, further, that the decedent had a lawful in the tree so far as company the defendant concerned, the reason that the company, tree was not on the lands of the nor owned or notwithstanding controlled it, that .rights placed was within its when it the wire in tree. The court further held that company placed when the the wire in the tree keeping “the erly danger—prop- burden of it free from any insulated and clear from defects requires operate law of those who own or such dan- gerous agencies charged as an electric wire with a voltage high electricity—continued with the com- pany, duty and this vested in it the time the dece- dent came contact with the wire.” plaintiff requested In that case the the trial court charge jury as follows: charge you, “I as a matter of law, it was the duty Eailway, Light of Mansfield & Power Com- pany, under the circumstances shown in this case, anticipated boys years have of tender would question, into climb trees the size of the one in *12 Eailway, Light and if the that Mansfield & Pоwer Company through maintained lines of wires such through they conveyed it trees, and currents of elec- dangerous high voltage, tricity of to life, it was the Power Co. v. North Coast duty otherwise of the to so insulate and injury protect to said wires as not cause to others so trespassers coming in therewith who are not contact injury.” from appellate
The instruction refused. But was requested court to be sound law held the instruction clearly applicable and facts. County Chickering
In the
Power
Lincoln
case
play
460),
boy
Co., Me.
Atl.
while
a
coming in contact with a
climbed
into
tree
instantly
held that
naked
killed. The
wire was
court
boy
climbing
himself
not
that tree the
did
remove
protection
sustain
court,
from the
the law. The
ing plaintiff’s
said:
recover,
enough
its burdens and
is short
“Human life
boys.
responsibilities
enough
take
To
soon
come
boyhood
legitimate pleasures
adven-
undoubtedly
climbing
restrict
tures
the confines
would
memory-cherished
domain
joys
there and thereafter.”
lessen life’s
both
Thompson
supra,
boy eight years
Slater,
through
into a tree
which uninsulated
old climbed
boy
extended.
sat
a limb above the
wires
The
on
throwing
him
limb
contact
broke,
wires. The
held
wires. The court
the defendant
reasonably
anticipated
have
it could
liable because
tree, and,
would climb the
further,
that a
breaking but
lack of
limb,
it
proxi-
that constituted the
wires,
insulation
injury.
of the
court
cause
mate
commented
within
the limbs camе
seven feet of
fact that
easy.
making climbing
ground,
In the case at bar
ground.
feet
within six
limbs came
Co.,
v. Minnesota Utilities
Minn.
In Znidersich
449),
maintained
line
N. W.
*13
Cooper
North Coast
v.
Power Co.
along
public highway.
of electric transmission
passed
unoccupied
along
The line
five-acre tract
a
playground. A
land much used
children as a
year
boy
flying
twelve
old
a
carried
was
Kite that was
by the wind toward
wires.
the line
the electric
string
caught
immediately
The kite
was
in the wires
poles
supported
above one of the
wires.
poles
open
highway
The
imme-
stood out in
on the
diately adjoining
grounds
where
children
played.
pole
supplied
The
was
with facilities for
climbing.
boy
pur-
pole
ascended the
pose
releasing
string.
He
his
kite
reached
through
charged
heavily
hand and arm
between the
wires,
uninsulated,
which
a
suffered
severe
injury.
judgment
plaintiff,
From a
rendered
de-
appealed. Upon
fendant
review it was
that the
held
presented
evidence
issues of fact for determination
jury
plaintiff
the verdict for
was
fully supported. To the same effect see
re-
the more
Brandenberg
Equity Co-operative
cent case of
change,
v.
Ex-
(199
570).
In v. Kansas & Power Co., 233) boy years age Mo. 472 S. W. a twelve injured by coming with contact an uninsulated through passing wire branches of a walnut tree gather he had which climbed nuts. The held court though trespassing upon that even he was land of a party, this third did not constitute a to the defense boy’s injury. City App. In Beckwith Malden, Mo. 17), the court held that S. W. it is not essential may easy require be climb in
that a tree order company stringing through its wires an electric anticipate presence of branches to children in It further held that such a tree. a who climbed v. North Coast Power Co. et al. way tree that stood of a railroad on the path, company, way which was nsed as trespasser although defendant, to the reference right way opened public. had never been to the Light, Grady & Louisiana Power Traction (Mo. App.), even 253 S. held that, W. it was *14 trespassing though that a was it be conceded child company, right way not he on the a railroad was of of maintaining trespasser company its to a as an electric way. poles company’s right of the railroad 189 N. C. Graham Power See, Co., v. Sandhill also, (127 429). 381 S. E. neglig’ence company guilty in the “If the is of thereby injury appliances
maintenance of and an such against trespasser com- the results pany, not to one as person when it was, is not material the injured, premises party, long as of a third so the anticipate company persons in the the such ances.” was bound to pursuit pleasure go upon of business would appli- premises proximity and its come to Electricity. The Law of 462, Curtis, Section duty persons of For an extensive on the note guard against danger wires, to children electric A. R. 17 L. 833. see danger, general probability
If 7. there is some duty anticipating has it the the and it appreciate necessary that it should know and might precise way dan an accident occur because Langevin ger: 81 Co., v. Twin & Electric State Gas (128 681). plaintiff, In case H. 446 N. Atl. bridge years age, crossing thirteen while boys fishing, stopped who were to watch other boys caught engaged one of the who were thus defendant on an electric wire com fish line pulled attempt pany. free his line he In his company, against wire another wire 669 North Power Co. et al. v. Coast plaintiff, falling upon which burned off in- and, jured boys many habitually years, him. For had plain- bridge place fished from this where injured, frequently tiff fish lines had been hanging fishing seen over wires. The сustom of point knowledge neighbor- at that was common in the hood. court com- The held that whether the electric pany’s highly failing keep its charged repair proximate wires cause of injury question boy’s would be a fact jury. degree required of care the caution graduated upon knowledge,
a child must be dis maturity experience cretion, in each child Ry. City case as it arises: Dubiver 44 v. Or. Co., (74 889); 227 Pac. 75 Pac. Ann. Cas. Rus Oregon (102 619); sell R. Co., & N. Pac. Gigoux County, 437). v. Yamhill 73 Or. Pac. 40), Burrell, Fisher Or. 317 *15 duty respect this held court with that, where a exists safety young age capa- to the their children, city might must be taken into that account, so what respect safety reasonable be care with to the capable loоking who are adults, out for them- might negli- gross selves, be but reasonable care, gence, respect children. alleged negligence
9. have said that the We of the presented jury question. defendants We also hold properly that the court denied the motion de guilty fendants’ contention wTas con negligence. tributory only It is no material where fact is left doubt and no reasonable deduction or contributory negligence fair inference other than proofs by jury can be drawn say, contributory matter can as a of law, court Co, Or. 670 Power v. North Coast in cases and even established; has been minds if reasonable not disputed, the facts are where of, upon questions conclusions draw diffеrent might for jury’s remains one question negligence, 446 (72 Co., 45 Or. City Ry. determination: v. Wolf 52 444 Heintz, Webb v. Or. 668); Pac. 78 Pac. Oregon Light v. Eastern Greenwood 753); Pac. (97 Watts Power Pac. Co., & (136 336); 67 Or. P. & 901); Pac. Ry. Co., S. (171 Or. Spokane, Com., Industrial Acc. 102 Or. Grant v. State Co., Electric Saylor Enterprise Pac. 438); 725). Pac. 223 Pac. 231 (222 instructions, no error court’s There being must affirmed. It so case ordered. this be
Affirmed. concur. J., O. J., Belt, McBride, dissents. J., Band,
Rehearing April 20, denied Behearing. On Petition 317.) Wilbur, Beckett, Messrs. Howell the petition, For & Lmighorne Hayden, and Messrs. Oppenheimer & Metzger. contra.,
No appearance affirmed the 16, 1926, judgment March we On recovery damages plaintiff favor of the death of on account Walter $4,000 the sum *16 May 24, by coming her only son, Cooper, owned, electric wires uninsulated main- contact Cooper North Coast Power Co. operated by Company, tained and Coast Power North corporation, a For herein. a one the defendants opin- full statement of case, the facts this see onr ion of that date. question ruling
The serious involved relates to the denying of the court in take defendants’ motion to jury. case appears It that the defendant constructed operated,' frequented by public over lands camping, picnic play grounds, power line a dangerous electricity. that carried a The current of belonged land to Mrs. but Newsome, Portland, company, property invading after her and erect- ing power through its line over it and the limbs large yew growing her obtained from thereon, right way poles to set its its lines maintain over her land. The tree, which, reason of its widespreading especially branches, was attractive climbing, topped by had been defendants at height ground. of sixteen feet four inches from the stump remaining eight two feet inches topmost point, diameter and was four four feet company’s sagged inches below wires. en- While gaged play, Cooper top Walter climbed to the stump and, some means unknown, in con- came heavily charged instantly tact with the wires and was killed. testimony tending is no
There to show this year twelve old knew that the defendant com- pany’s they wires above the car- tree, current. ried an electric opinion picnic former
In our we held party, which Walter was a com- member, upon rights trespass no mitted property. by going Newsome So far as the *17 Or. et al. Power Co. North Coast v. right- they were concerned, was chil- fully upon Moreover, land. Newsome right over which climb the dren had See company’s maintained. authorities lines were opinion. in former cited our rehearing petition the defendants for a In their things, say, among enunciated the doctrine other Ann. Riggle Cas. Pac. 346, Lens, v. Haynes 150), and in 1915A, R. A. L. 1916C, Oregon-Washington R. & 77 Or. Co., N. v. by repudiated practically de 286), our has been announced if the therein that, doctrine cision, by longer these court, this adhered to be no “is to ** repu expressly overruled and should be cases certainty may as there be some in order diated ’’ question in state. this this law on to the of the state repugnant nothing our that is decision There in the cases. enunciated above doctrine to the age Biggie siopra, an infant Lens, In v. by years mill-race owned de- drowned in a five was play premises. defendant’s on the fendant while discussing the court said: In that case injury was claimed not case where the “This is properly guarding by reason dangerous condition.” concealed, question the mill- was whether the owner of child, of the while who, liable for the death was race trespassing premises upon owner unguarded playing fell banks, its mill-race drowned. in and Haynes Oregon-Washington case of
In the injured supra, plaintiff, a Co., minor, & N. R. forming a cave near the a bank of earth fall right way, company’s in a cut formed railroad plaintiff way. right The court held 6Y3 et al. Garrett Hunt trespasser upon way, was a the defendant’s duty plaintiff and that the defendant owed no as a trespasser except any inflicting that of not wanton or injury. reckless substantially foregoing
The facts in the cases differ from the persons cases, facts at bar. those case trespassers upon property of de- *18 accidentally injured. we fendant when In this case, plaintiff rightfully prem- seen have that the on frequented by public lawfully ises that for purposes he and that was not a tres- recreation, passer against the defendant at time he mеt death. petition rehearing be will denied.
Rehearing Denied. Rand J., C. concur. JJ., Belt, McBride, appeal 2, to dismiss denied March submitted on briefs Motion April 30, 20, 1926. the merits March modified A. GARRETT EMMA R. HUNT W. et al. 82; 321.) 245 Pac. Providing Appeal Appeal Error—Statute, That be No shall Any Money Supreme Recovery Court in Action Tafeen or Does Damages Only, Controversy §250, Amount in Unless Exceeds Apply Equity (§ 548, L., not Suits in Or. Amended 1923, p. 216). Laws 548, L., 1. Portion of Section amended Laws of page in providing appeal Supreme no shall be taken to Court any controversy recovery money damages action for only, unless amount $250, apply exceeds equity, though does to suits in judgment only part appealed attorney is allowance of fees. See R. Or.—43 C. L. 35.