136 P. 330
Or.
1913

Opinion by

Mr. Chief Justice McBride.

1. There was nothing in the testimony to justify the court in instructing in respect to an unavoidable accident. If the hole was unguarded, or insufficiently guarded, as claimed by plaintiff, it follows as a necessary consequence that defendant was negligent. If it was sufficiently guarded, and plaintiff went over the guard and fell in consequence, it follows logically that he was not exercising reasonable care and was negligent ; or, if the aperture was unguarded, and the danger was so apparent that a person in the exercise of ordinary care ought to have seen and avoided it, he was guilty of such contributory negligence as should have precluded a recovery. There is absolutely no room for saying that the testimony presents a case of unavoidable accident. It is a case where one party or the other, or both, were negligent.

2. The court, however, gave the following instruction, which we think covered the matter requested and refused: “The accident alone does not entitle him to recover in this case without proof of negligence, and if it was an accident without any negligence, then of course there can be no recovery by the plaintiff. ’ ’

3. The second requested instruction, we think, was sufficiently covered by that portion of the general *423charge which reads as follows: “He can recover only npon the canses which are set forth in his complaint— failure- to inclose that opening there, and because of improper light. The defendants do not insure the men who come into their employ, but they do undertake to exercise the care which is required by the statute of 1910, to which I have directed your attention. In this case the burden of proof is upon the plaintiff to prove to your satisfaction, by an outweighing or by preponderance of the evidence, as we say, that the defendants were negligent, and that their negligence was the proximate canse of the injury which came to him, and that he has been damaged thereby. The defendants have pleaded contributory negligence, and as to that the burden of proof is upon them, but in all other respects it is upon the plaintiff. Excepting as to contributory negligence the plaintiff is the burden bearer in this case, and must convince you of his cause by a preponderance of evidence. * * If he has not sustained the burden of proof, and the other side has made it appear that the weight of testimony is with them, then the defendants are entitled to your verdict. If you find that the scales hang so evenly that you cannot say that the preponderance is one way or the other upon any issue which the plaintiff is bound to sustain by a preponderance of the testimony, then there has not been a preponderance upon his side. It must weigh more, and if it does not weigh more in the way I have indicated, the defendants are entitled to your verdict.” It is not error for the court to refuse to give an instruction in the language requested if the same matter is given in other language in the general charge: State v. McDaniel, 39 Or. 184 (65 Pac. 520); State v. Megorden, 49 Or. 259 (88 Pac. 306, 14 Ann. Cas. 130); Galvin v. Brown & McCabe, 53 Or. 489 (101 Pac. 671).

*4244. The third request was properly refused for the reason that no claim was made in the complaint and no testimony offered as to any damages by reason of physician fees or hospital expenses: Davis v. Shepherd, 31 Colo. 141 (72 Pac. 57).

The fourth request was for a cautionary instruction to the jury, admonishing them not to allow sympathy for the plaintiff to influence their verdict, the giving of which is usually held to be a matter of discretion with the trial court: State v. Megorden, 49 Or. 259 (88 Pac. 306, 14 Ann. Cas. 130); Birmingham Fire Ins. Co. v. Pulver, 126 Ill. 329 (18 N. E. 804, 9 Am. St. Rep. 598); Central Branch U. P. R. Co. v. Andrews, 41 Kan. 370 (21 Pac. 276). At circuit in this state the practice has not been uniform. Some judges always give cautionary instructions similar to those requested in the case at bar, while others refuse to give them. The writer when upon the circuit bench was in the habit of giving such an instruction as a matter of course in cases of this character and in trials for homicide, but is not certain that it ever had a particle of effect, as no juryman is ever aware that his opinion is being affected by the subtle influence of sympathy.

The trial in this case seems to have been very fair, the issues well presented in the instructions, and the verdict moderate.

The judgment is therefore affirmed.

Affirmed.

Mr. Justice Moore, Mr. Justice Burnett and Mr. Justice Ramsey concur.