100 F. 244 | 9th Cir. | 1900
At the time of the injury for which the plaintiff in error brought this action, the defendants J. G. & I. N. Day were engaged, as contractors for the United States, in making rock excavations for the locks then in course of construction at the point on the Columbia river known as the “Cascade Locks.” Their work was being carried on within the boundaries of the tract of land that had been theretofore acquired by the government by condemnation proceedings for the purposes of the work then under construction. Across this tract congress had, by joint resolution, authorized the state of Oregon to construct, maintain, and operate a portage railroad, and to use in the construction of the same, and in the operation thereof, the government roads upon the land, provided that such occupation and use should not interfere with the government works at the Cascades, and should be
“That he came from The Dalles to the locks on the -Regulator; that Mr. Mosher ancl Mr. Young and Mr. Kelly and other persons were with him; that when he got to Cascade Docks he got on the portage railway, and rode on the train down to the lower wharf, and then got on from there onto the Dalles City; that he went right along with the other passengers. Q. Well, when you got down to the Dalles City, go on and tell the jury just what happened. A. There was about 25 or 30 passengers going up the stream, and I was going down; and the time of the hubbub of the people getting off the boat — ■ There was blasting at that time, so I understood. I heard some noise, and went in and sat down, and the people went up the river, and, after the passengers going up stream had got off the'boat, we sat. down and played a game of cards, — played a game of Pedro for about 15 minutes; and then I went and sat down on the seat, and went to talking to. the steward for a few minutes, and then I sat down in this kind of a seat, and the boat was rocking. It rocked me into a kind of dozing sleep, and the rock struck me on the head. I never knew what struck me.”
We agree with the learned judge of the court below where he said, in ruling upon the plaintiff's motion for a new trial (86 Fed. 62), that:
“The plaintiff and his fellow passengers went upon the premises where the blasting was being done with their eyes open. Their right there, whether it was a right by sufferance or license, implied or otherwise, was subordinate to the right of the defendants to prosecute the work in which they were engaged. These passengers assumed all risks necessarily incident to such w-ork prosecuted with skill and reasonable care, — such care as is usually employed under like circumstances. They had a right to expect, and are presumed to have relied upon, this degree of care.”
We also agree, contrary to the contention of tbe plaintiff in error, that the facts and circumstances of the case were such as to make it proper for the court below to submit to the jury the question of contributory negligence on the part of the plaintiff; and, in the main, we think the instructions given by the court below to the jury were quite as favorable to the plaintiff as they should have been, and in one'respect perhaps too much so, namely, in submitting to the jury the question as to whether the defendants were in duty bound to cover , their blasts, or to await the departure of the boat before firing them. But there was one error committed in the trial, for which we feel bound to reverse the judgment. Against the objection of the plaintiff, one of the defendants, Day, was permitted to testify to an agreement had between the defendants and the navigation company, by which that company used the wharf at which the plaintiff’s injury occurred at its own peril; and the court below refused to instruct the jury, as requested by the plaintiff, that, if there was an arrangement between the navigation company and the defendants by which tlie former was permitted to use the landing where the accident occurred at its peril, this would not bind the plaintiff. That the plaintiff’s rights were entirely unaffected by any contract or understanding between the defendant's and the navigation company is very clear. Little v. Hackett, 116 U. S. 366, 6 Sup. Ct. 361, 29 L. Ed. 652, and cases there cited. The refusal to give the