117 P. 311 | Or. | 1911
delivered the opinion of the court.
The testimony tends to show that a firm, known as Bingham & McClelland, as original contractors, were engaged in the construction of a building on a block in Portland on the east side of the Willamette River. They had excavated for the basement, leaving the sidewalk on the east side of the premises at a height of about 15 feet above the ground floor. At this stage of the work, it became necessary to drive piling into the earth at the margin of the basement, upon which to rest a foundation. Each pile was driven down flush with the surface of the ground, and the pole in question was then placed on top of the pile and used as a follower to drive it still farther
From such cases as St. Louis v. Dupree, 84 Ark. 377 (105 S. W. 878: 120 Am. St. Rep. 74); Louisville v. Lumkin (Ky.) 124 S. W. 318, and others cited in their brief, defendants argue that the deceased was guilty of contributory negligence in going near dangerous machinery, or into a dangerous place, without giving notice to the people in charge, so that they might take measures for his safety. This question is not raised by the assignments of error, and we cannot presume that the court did not give the jury suitable instructions in that respect. The cases cited, however, are easily distinguishable from the one in hand. They are all instances where a car inspector, engineer, or other like railway employee, perfectly familiar with the situation and the operation of the trains, went under a car or locomotive without setting any warning signal, and knowing that the cars were apt to be moved at any time. To move the cars and engine was, in each case, the ordinary course of business that any one might expect. Here the deceased had no reason to anticipate that the usual course of operations was for the follower to fall as it did. Indeed, the effort of the defendant has been to show that such a result was unexpected, and hence a mere accident. If, for instance, the deceased had stolen up unnoticed and put his hand on the head of the pile, so that the descending hammer crushed his fingers, the reasoning of the precedents cited by the defendants would apply, for the fall of the hammer is the ordinary course of operations with such a machine. Hence, in our judgment, the cases cited are not in point here.
Section 725, L. O. L., provides that “evidence shall correspond with the substance of the material allegations and be relevant to the questions in dispute. Collateral questions shall, therefore, be avoided.” This section has many times been used as authority in the courts of this State for the exclusion of matter similar to the testimony now under consideration. In Knahtla v. Oregon Short Line R. R. Co., 21 Or. 136 (27 Pac. 91), it was held that under a complaint which charges the injury complained of to have been caused by the negligence of a defendant railway company in permitting a bridge on its road to become and remain out of repair, and failing to keep proper watch and oversight of the same, the plaintiff will not be allowed to show that the bridge was constructed originally in an improper and negligent manner, and this because the proofs and allegations must correspond with each other. In Lieuallen v. Mosgrove, 33 Or. 282 (54 Pac. 200, 664), it was held that an allegation that fire was negligently taken from defendants’ engine, used for threshing, and placed upon the ground in and about the stubble from which it communicated to and consumed plaintiff’s property is not sustained by evidence that defendants were negligent in not effectually extinguishing the fire, after it had been properly taken from the engine. Other cases might be cited, but these are sufficient to illustrate the principle as laid down by this court in former decisions. Applicable to this situation is Aldrich v. Railway Company, 39 Or. 263 (64 Pac. 455), wherein the rule is held to'be well settled in this State that, while error will not be presumed, yet when it appears from the transcript there is no presumption
This testimony was clearly harmful, because it tended to give the jurors the impression that the situation contained more danger than that alleged in the complaint. In that it did not correspond with the allegations of the complaint, and must have prejudiced the minds of the jurors, it was harmful error to admit this testimony, for which reason the judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. REVERSED.