116 P. 335 | Or. | 1911
delivered the opinion of the court.
There is no evidence that plaintiff observed or had occasion to observe the defective condition of the rope, and therefore no evidence upon which an instruction as to contributory negligence on his part could be predicated. In this view of the case the instruction of the court as to contributory negligence becomes purely academic; but so far as it went it seems to be the law.
“I instruct you that if the guy line in question was made single by Anderson, or any of the employees of the defendant, and that by reason of being made single, instead of double, it could not stand the strain and broke, and plaintiff was thereby injured, that your verdict must be for the defendant, as the act of Anderson or any other of defendant’s employees in lengthening the rope was a detail of the work that defendant, as a matter of law, could leave to the servants to carry out.”
“I instruct you that, so far as this case is concerned, Anderson was a fellow servant of plaintiff, and defendant cannot be held responsible for any negligence on the part of Anderson.”
Both of these requested instructions assume as a matter of law that Anderson was a fellow servant with plain
The judgment is affirmed. Affirmed.