Hagermann v. Chapman Timber Co.

Mr. Justice Burnett delivered the opinion of the court.

1. The errors relied upon at the hearing were predicated solely upon the refusal of the trial court to charge the jury as requested by the defendant in certain particulars. Three of these requests, viz., those about the mere happening of an accident, the burden of proof, and the negligence of the defendant being the proximate cause of the injury, are connected with the proposition that the plaintiff is. required to prove “negligence in the respects charged in the complaint.” These requests in the form proposed were properly refused by the trial court because they all apparently require the plaintiff to prove all the allegations of the complaint about negligence, whereas proof of only some of them might have been sufficient to charge the defendant. For instance, it might have been true that the defendant was not responsible for the weak condition of the cedar tree, and could not possibly have discovered it by the exercise of reasonable diligence, and yet it might have been also true that it was negligent in allowing the trip-line to drag upon and throw the log against the tree, knocking it down upon the plaintiff. In effect, the complaint contains three counts of negligence, so that it was not absolutely necessary for *593 the plaintiff to prove all of them, as contemplated by the wording of the instructions mentioned. Instructions to the effect that the mere happening of an injurious accident alone would not of itself impute liability to the defendant, that the negligence of the defendant in the respects charged, or some one or more of them, must be shown to be the proximate cause of the injury, coupled with some such definition of proximate cause, as defendant requested, and that the plaintiff must prove the negligence charged by a preponderance of the evidence in the respects, charged in the complaint, or some of them, would have been quite apropos, but the instructions requested on these points were all affected by the vice of requiring the plaintiff to prove all the counts of negligence when one might have been sufficient.

2. On the other hand, the defendant requested the court to instruct the jury as follows: “If you find from a fair preponderance of the evidence that said trip-line or said trip-line block, was not at any time by defendant ever attached or fastened to the tree which fell upon the plaintiff, then I instruct you that the charge of negligence in attaching said trip-line te said tree, subjecting said tree to a severe strain, and in thereafter removing said trip-line from said tree,, leaving the same in a tottering condition, should be wholly ignored by you and not considered in determining whether or not defendant was negligent.” The-plaintiff chose to make this one of the separate elements or counts of negligence with which he charged the defendant. It became by his election an issuable-fact to be determined by the jury, and the defendant was entitled to have this instruction on that point.

3, 4. Another request was to the effect that, -although the tree was left standing in a weak and tottering condition after removing the trip-line and its support, plaintiff must prove by a preponderance of *594 the evidence that defendant actually knew that the tree was dangerous, or that the condition of peril existed for such a length of time that the defendant, in the exercise of ordinary care under the circumstances, should have known of the hazardous condition of such tree. There was also a similar request based on the testimony about the tree being burned at its roots. These requests were likewise refused. The court in very general terms in its charge to the jury defined ordinary care and negligence, but gave no concrete application of the principle to the testimony in the case, and was utterly silent about the requirement of the statute that the finding of the jury shall be according to the preponderance of evidence: Section 868, subd. 5, L. O. L. These instructions would have more clearly pointed out the application of the principle to the issue involved, and should have been given. Within reasonable limits, parties are entitled to have their theory of the evidence presented to the jury by proper instructions applicable to the case in hand, for jurors are not always enlightened by mere generalities.

5, 6. Lastly, the Circuit Court refused to give to the jury this instruction:

“If you find from the evidence that at the time plaintiff was hurt, he was just as well aware of the danger of doing said work under the conditions existing at said time as his employer was, and that such danger was open and obvious, and could have been discovered by the plaintiff by the use of ordinary care, then I instruct you that Hagermann assumed the risk and cannot recover, and your verdict should be for the defendant.”

Considerable was said in the charge about assumption of risk, but nothing about the effect it should have upon the verdict. The • request last quoted covered this point, and, if given, would have cured the *595 defect of the general charge in that respect. This request to charge is a correct statement of the law of assumed risk, as the same existed prior to the initiative act of November, 1910, requiring that “all owners, contractors or subcontractors and other persons having charge of, or responsible for, any work involving a risk or danger to the employees or the public, shall use every device, care and precaution which it is practicable to use for the protection and safety of life and limb. * * ” It is founded upon the principles that both employer and employee are bound by the rule of taking ordinary care to avoid accidents, and that if the danger is apparent to and is understood by the plaintiff, and he continues to work in the dangerous situation, he assumes the risk of the employment, and cannot complain if he is injured in the prosecution of the work. Under all the precedents of the law as it stood at the time, the defendant was entitled to the instruction: Roth v. Northern Pac. L. Co., 18 Or. 205 ( 22 Pac. 842); Blust v. Pacific Tel. Co., 48 Or. 34 ( 84 Pac. 847 ); Westman v. Wind River Lumber Co., 50 Or. 137 ( 91 Pac. 478 ).

In the matters indicated the court was in error, and the judgment is reversed. Reversed.

Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Ramsey concur.