146 P. 980 | Or. | 1915
It is contended that tbe testimony shows the plaintiff’s injury was caused by his own carelessness, and hence errors were committed in denying a motion for a judgment of nonsuit and in refusing to direct the jury to find for the defendant. The evidence shows that the defendant is a corporation, and operates at Hood River, Oregon, machinery to generate electricity which is distributed by wires suspended upon poles, and that the current thus produced is used for power and lighting purposes. A part of the system, extending into the farming country, and carrying 6,600 volts, consists of three primary wires continuing east and west, and supported, at the place of the accident, by a double cross-arm, which is seven feet in length and fastened near the top of the pole. Four feet lower is another similar cross-arm sustaining two secondary wires. Two feet below the latter support are two more secondary wires extending north and south, and upheld by another double cross-arm of the same length called a “buck-arm,” but placed at a right angle with the others. From each of the two outer wires of tbe upper group a wire called a “primary lead” extends to a fuse-box or “cut-out,” which is immediately below the wire referred to of the upper group, and fastened near an end of the middle cross-arm. Primary leads extend from two fuse-boxes to a transformer, which is placed on the west side of the pole, and which rests on the top of the buck-arm, but is hung to the middle arm. The transformer reduces the current carried by the primary wires to the required voltage, which measure is conducted by leads to the secondary wires, and thence distributed to customers for domestic purposes. Just beneath the buck-arm is the bight of a guy wire that ex
The plaintiff is a lineman and repairer, having had about four years’ experience, and been occasionally employed by the defendant. He testified, in effect, that its manager, A. S. Hall, on November 6,1913, requested him to go to the pole referred to and repair the line; that he went as directed, and climbed the pole before Hall and a helper arrived; that, standing on the buck-arm, he opened the doors of the fuse-boxes, and discovered that each fuse therein had blown out; that, the manager and his assistant having arrived, they tossed up a coil of fuse and a plug puller to the witness, who removed from the cut-outs the plugs, which he connected by fuse with the primary leads and inserted in their respective places; that in doing so the fuse on the south side of the pole again blew out, therby demonstrating that the transformer had been injured by too great a current of electricity; that Hall thereupon informed him it was unnecessary to withdraw from the fuse-box on the north side of the hole the plug to which the uninjured fuse remained attached, saying the transformer could be replaced by another the next day, and directed him to descend;. that in obeying the command he took a step downward, placing the iron spur fastened to his right foot into the pole through the loop of the guy wire on the north side, his left foot resting on the buck-arm; that a wire then caught his shirt, and in trying to disengage the entanglement his right arm came in contact with the primary lead which extends from the
J. E. Thompson, an electrical engineer, testified, in substance, that it was extremely dangerous to permit a bare ground wire to come in contact with a transformer, or with secondary wires, or with an uncovered guy wire, and that, without such connection, if. the pole were perfectly dry, a lineman touching a primary wire might feel a little effect of the electricity, but he would not be seriously harmed.
F. L. Gifford, another electrical engineer, testified, in effect, that a ground wire from a transformer connected with a guy wire, as described herein, was a death trap.
The theory of the defense is that on April 5, 1913, the plaintiff hung the transformer referred to, and in doing so neglected to insert the primary lead on the north side of the pole in rubber hose, and that his elbow coming in contact with such exposed wire was the proximate cause of the injury.
Frank Surrett, a lineman, stated upon oath that on February 12,1913, he assisted in rebuilding on the pole the Maloney transformer in question, and that the primary leads therefrom were then covered with hose.
The plaintiff, as a witness, admitted that on April 5, 1913, he rehung the transformer and made a written report of the work to the defendant. In referring to such service he testified generally that he took down the transformer and hung another with new primary leads which come therewith, but he could not remember what insulator such wires had, nor could he call to mind that the primary leads on the old transformer were
A. S. Hall, the defendant’s manager, testified that the electric line on which the plaintiff was hnrt was put np about December 1,1912. Referring to the completion of that branch of the system, this witness was asked by defendant’s counsel: “How long did that transformer stay on the pole?” He replied:
“It stayed there until early in the spring of 1913. It burned out, due to grounding.
“Q. Was that the transformer that Sonniksen took down from the pole on the 5th of April, 1913?
“A. Yes, sir.
“Q. Do you know whether or not there was any changes or repairs or anything done to the transformer from the date that Sonniksen put it up on the pole until the time of the accident?
“A. I have no knowledge of anything having been done there; in fact, I think there was not.
“Q. If there was, would your records show it?
“A. Yes, sir.
“Q. Why would your records show it?
“A. Because every man going out to work turns in a time-card for the work done, and no one goes out on a job of that kind without my knowledge.
“Q. Is that time-card similar to this time-card introduced in evidence yesterday, made by Sonniksen?
“A. Yes, sir. They always have to be turned in in order to draw pay for the work.
“ Q. So you can state from your handling of the men and the records there has been no change in the transformer?
“A. I think not.
“Q. What insulation is provided by you or by the company for the insulation of the leads from the fuse-boxes into the transformer?
“A. The transformer always comes with a manufacturer’s lead — that is, a lead put in by the manufactur*31 ing company — which in some cases .is long enough to reach this fuse-box. Otherwise it is spliced out with weather-proof wire, and the whole thing covered with hose.
“Q. Rubber hose?
“A. Yes, sir.
“Q. And that provides an insulation?
“A. Yes, sir.
“Q. State whether or not the transformer that Sonniksen hung, and he testified he put those wires there, state whether or not after the accident you discovered anything.
“A. When I went out after the accident to examine the pole, I found that there was a section spliced in this wire to reach the fuse-box, about 8 inches long, that didn’t have hose on it. It had no hose where it was spliced, and there was no hose on the lead.
“Q. He had omitted to put the hose there?
“A. Apparently so.”
This witness further testified that the covering used by his principal as an insulator on primary leads was a half-inch garden hose through which the wires from the fuse-boxes to the transformer were inserted. Referring to the standard set of materials always taken out to make such repairs, he stated that they consisted of the hose, transformer, cut-out boxes, fuse and fuse-holders, and that the plaintiff, having hung several transformers, knew what such standard outfit consisted of.
‘ ‘ The contributing negligence of the plaintiff, if you should find him negligent, would not be a defense under the law, but it may be taken into account by you in fixing the amount of the damage. In other words, if you find that the defendant violated its duty,- and be*34 cause of the violation of its duty plaintiff sustained an injury, then the defendant would not have the right to say that the contributory negligence of the plaintiff, if plaintiff was guilty of contributory negligence, could serve it as an absolute defense, and in the event you would have the right only to take into consideration any contributory negligence of the plaintiff for the purpose of mitigating the damages the plaintiff may have sustained. ’ ’
The defendant’s counsel requested the court to give an instruction practically embodying the language quoted, but using the word “must” where “may” is employed. The solicited instruction was denied. It contained a sentence that rendered the language employed objectionable. The request will be treated, however, as calling the court’s attention to the use of the proper word.
Section 6 of the employers ’ liability law reads:
“The contributory negligence of the person injured shall not be a defense, but may be taken into account by the jury in fixing the amount of the damage.”
In Filkins v. Portland Lumber Co., 71 Or. 249 (142 Pac. 578), in discussing the clause of the statute referred to, it is said:
“Construing Section 6 in connection with the other provisions thereof leads to the.conclusion that the enactment makes an injury suffered by an employee, when performing the service for which he was engaged, a loss the damages resulting from which, if sustained while the person so hurt was exercising ordinary care, must be wholly liquidated by the employer; but, if the party injured was not at the time he was hurt exercising that measure of care, a part of such loss must be borne by him, while the remainder of the damages is recoverable from the other party, on the basis of the comparative degree of the fault of each.”
“The defendant sought to have the jury instructed on the question of damages to the effect that, if the plaintiff’s negligence was equal to, or exceeded, that of the defendant, they must find for the defendant. The court, however, instructed the jury, in substance,that it was the duty of the jury to diminish or reduce the damages attributable to the defendant’s negligence in proportion to the amount of negligence justly chargeable to the plaintiff, and if there should be any difference in favor of the plaintiff, after the damages were reduced to a money value, such difference should be the amount of their verdict. The instruction of the court was, in substance, a compliance with the federal statute on that subject, which requires that in case of, contributory negligence it shall not be a defense, ‘but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee. ’ Thus it will be seen that under that statute it is not a question of majority of negligence, but rather one of proportion. Any negligence of the defendant working injury to the plaintiff would therefore entail some damages. For illustration, let us suppose that both parties were equally negligent in the estimation of the jury, and that the actual damages of the defendant were properly assessable at $2,000. In such a case the verdict should be for the plaintiff in the sum of $1,000, for the reason that his negligence is one half of the sum total of all the negligence of both parties.” '
In an action under the employers’ liability law, to recover damages for a personal injury, the jury as a' basis for computation should first determine what sum of money would afford indemnity for the loss sustained, irrespective of the cause of hurt, and, if they find the employee was free from negligence at that time, and the defendant was guilty thereof, their verdict
Though the clause of the act under consideration uses the word “may,” the jury must apportion the damages occasioned by a loss suffered by an injury to an employee when he and the employer have both been negligent in the manner indicated. Though the instruction complained of is subject to criticism, on the ground that it gave the jury an option whereby they might escape the duty devolving upon them, the language used should be construed with other parts of the charge on the same subject: Wellman v. Oregon Short Line Ry. Co., 21 Or. 531 (28 Pac. 625); Matlock v. Wheeler, 29 Or. 64 (40 Pac. 5, 43 Pac. 867); Wadhams v. Inman, 38 Or. 143 (63 Pac. 11).
The court, in referring to Section 6 of the employers ’ liability law, further instructed the jury as follows:
“This law makes it incumbent upon you to compare the negligence, if you find both parties guilty of' negligence contributing to or bringing about plaintiff’s injury. If, therefore, you find that the defendant has been negligent in some manner as charged in the complaint and that such negligence contributed to plain*37 tiff’s injury, and you also find that plaintiff was guilty of negligence contributing to his own injury — and I have defined to you what facts would constitute such negligence — the negligence on the part of the plaintiff may be taken into account by you in mitigation or reduction of the damages that you might otherwise find for plaintiff.”
It is believed that the use of the word “incumbent” in the part of the charge which stated to the jury, “The law makes it incumbent upon you to compare the negligence, if you find both parties guilty of negligence contributing to or bringing about plaintiff’s injury,” corrects any inference that might have arisen by the employment of the word “may” instead of “must.” The instruction complained of was not contradictory, and the duty required of the jury was lacking only in degree.
It must be assumed that the jurors who tried this cause were intelligent men who fully understood the meaning of the English language and were able to comprehend the entire charge; and, since each juror signed the verdict when a less number, under our statute, might have determined the issues involved, we consider they were not misled by the instruction complained of, when viewed in connection with the entire charge, and that no error was committed as alleged.
Other errors are assigned, but they are deemed immaterial.
It follows that the judgment should be affirmed, and it is so ordered. Affirmed. Rehearing Denied.