102 P. 601 | Or. | 1909
Lead Opinion
delivered the opinion of the court.
“Well I think the cause of that was that the connection between the lever and the disc — that is, between the main lever and the lever that works the box back and forth, to throw the disc against first one friction and then the other — was loose.”
“And when there is any repairing on that, they pull that lever off and throw it down, and the man operating that is supposed not to touch it unless we give him orders that it is all O. K. ”
There is testimony tending to show that it had stopped when plaintiff approached it. If so, and he had no notice that it was liable to start automatically, then the questions whether he had a right to rely upon the machine remaining stationary, whether he assumed the risk, and whether it was negligence for him to work on the north side of it, although it might have been safer on the other side, when the machine was in motion, were for the jury. Donahue v. Drown, 154 Mass. 21 (27 N. E. 675) ; Blanton v. Dold, 109 Mo. 64 (18 S. W. 1149).
Both the questions of assumed risk and contributory negligence were proper questions to be submitted to the jury upon the evidence adduced, and we find no error in the denial of the motion for nonsuit or for a directed verdict. Affirmed.
Rehearing
On Petition for Rehearing.
[108 Pac. 514.]
delivered the opinion of the court.
The basis for this motion is that the cause of the accident is not definitely shown by the evidence, and that therefore the liability of defendant is not established, and nonsuit should have been allowed.
The motion for rehearing is denied.
Affirmed: Rehearing Denied.