120 P. 1057 | Or. | 1912
delivered the opinion of the court.
In People v. Davis, 56 N. Y. 95, 102, Mr. Justice Grover, in discussing this subject, announces the following legal principle: “The question is, Did the proposed declaration accompany the act or was it so connected therewith as to constitute a part of it? If so, it is a part of the res gestae, and competent; otherwise not.”
Though denied by some of the witnesses, testimony was offered from which the jury might have found that for several months before the accident defendant’s
The plaintiff testified that prior to September 27, 1909, he "had worked at the sawmill about a week, and in that time he had made two or three trips to the loft where the lumber was stored, going over the roof of the shed, beneath which flooring and stepping were then piled, and passing along the truck load of lumber forming an inclined way; that just prior to the injury he notified Mr. Huard that he desired some lumber to complete a piece of work on which he was engaged for the defendant, informing the superintendent that the material was stored in the loft, whereupon the latter directed him to get the necessary lumber from the place indicated; that, when he attempted to obey the command, Huard stood near and in full view of the shed; and that, when falling, the witness observed the superintendent looking towards him. The jury might therefore have reasonably inferred that the defendant’s superintendent saw plaintiff as he ascended the inclined way.
It is argued that plaintiff might have obtained the lumber from the loft by ladder in the use of which no danger would have been encountered, and, as the choice of two ways was open to him, he, as an experienced carpenter, should have known the conditions, and, having selected the most dangerous way, he thereby assumed the risk, and was guilty of contributory negligence in consequence of which he was injured, and for that reason an error was committed in refusing to direct the jury to find for the defendant. The testimony tends to show that near the place of the accident no- ladder was kept, but that one might have been obtained from the mill yard or from some other building.
No error was committed in refusing to instruct the jury as requested. Believing that the defendant had a fair trial at which no prejudicial errors were committed, it follows that the judgment should be affirmed, and it is so ordered. Affirmed.