Carroll v. Grand Ronde Electric Co. , 52 Or. 370 ( 1908 )

Opinion by

Mr. Chief Justice Bean.

1. The facts were stated with such elaboration in the opinion of Mr. Justice Moore on the former appeal that we adopt them for the purposes of this opinion. The objections to instructions 11 and 12 are that they are argumentative, and imposed upon the deceased a higher degree of care than the law exacts. But we think they fairly state the law as applicable to the facts of this case, although the language may be open to some verbal criticism.

2. The rule announced is that, if the death of plaintiff’s intestate was due to the “want of prudence or ordinary care” or want of “due care and caution” on his part, plaintiff cannot recover; and this we understand to be the law.

3. If plaintiff desired the court to define the terms “due care and caution” or the “want of prudence or ordinary care,” she should have requested it tó do so: Kearney v. Snodgrass, 12 Or. 311 (7 Pac. 309) ; Nickum v. Gaston, 24 Or. 380 (33 Pac. 671: 35 Pac. 31).

4. The objections to instructions 12, 13, and 14 are that the court erroneously ■ assumed therein that there was testimony tending to show that deceased knew that the wire, which caused his death, was broken and hanging on the fence; that he went to such place through idle curiosity, and that he carelessly or thoughtlessly came dangerously near or in contact with it; and that he pointed his finger at it for the purpose of ascertaining whether it was charged with electricity. It may be that there was no direct testimony to prove these facts, but there was evidence from which the jury would have been justified in so finding. The wire parted and fell to the ground on the evening before the accident. It was taken up and placed on the fence by Minnick, who, in the presence of several persons, pointed his finger at it for the purpose of testing it, and received an electric shock therefrom, which threw him to the ground. The deceased was not present at the time, but came to the Hempe farm a short time thereafter, and heard the matter talked about. It was again referred to at the breakfast table the next morning, and he, with others, was warned by Mr. Hempe to keep away from it “because it was certain death.” He worked until noon the following day with George Hempe, who was present at the time Minnick received his shock, and who talked the matter over with the deceased, although he does not remember distinctly that he told him the wire was hanging on the fence. When he and the deceased came in from their work at noon, 'Hempe said that he was going out to the wire for the purpose of testing it, and the deceased voluntarily accompanied him. Neither of them had any business in that vicinity, and their duties on the farm did not require their presence there. They walked out to the fence together. On the way, Hempe picked up a dry stick and a green weed with which to make the test, and they were talking about the effect of electric batteries ; the deceased explaining to Hempe which person in a circle would receive the heaviest shock. Hempe approached the fence, and was engaged in touching the wire with his dry stick and green weed, when the deceased crossed the irrigating ditch, walked to the fence, and with his left hand took hold of one of the pickets, about two feet from where Hempe was testing the wire, extended his forefinger in the direction of the wire, and while looking ahead or in front of him received the shock which caused his death. Under this evidence the jury would clearly be justified in finding that the deceased knew that the wire was hanging on the fence because he had been told about it being down and of Minnick’s experience with it; and, moreover, he and Hempe went to the place for the purpose of testing the wire. It was in plain sight where he could have seen it, and it is but a reasonable inference that he did see it and knew that it was hanging on the fence. He was not required to be in that vicinity in the performance of his duties on the farm, and, unless it was idle curiosity which prompted him to go there, it is difficult to conceive a reason for his presence. That he was killed by a shock from the wire is evidence that he carelessly or unthoughtfully came dangerously near or in contact with it, unless we are to assume that he acted from purpose or design. The fact that when he took hold of the fence picket he was looking in front of him toward the wire, and had his finger extended in that direction, is evidence from which the conclusion can be inferred that he was pointing his finger at the wire to ascertain whether it was charged with electricity. His companion, Hempe, had been unable to obtain any evidence that it was so charged by the means adopted by him, and it may be the deceased concluded to supplement such test by extending his finger toward it.

5. It is also said that instruction 13 is erroneous because of the statement therein in reference to the deceased disregarding the warning of his employer to keep away from the wire, and the danger to be apprehended therefrom; but this was not intended to announce as a principle of law that a disregard of the instructions of his employer would of itself be contributory negligence, but only' that plaintiff could not recover if the deceased knew of the danger to be apprehended, and notwithstanding such knowledge voluntarily placed himself in a position to receive the shock therefrom.

6. The objection to No. 15 is, counsel say, that it left the jury no alternative under the evidence but to find for the defendant. The instruction is unobjectionable as a proposition of law when applied to the facts: Carroll v. Grande Ronde Elec. Co. 47 Or. 424 (84 Pac. 389: 6 L. R. A. (N. S.), 290) ; Beck v. Vancouver Ry. Co. 25 Or. 32 (34 Pac. 752). And if, under the evidence, the defendant was entitled to a verdict, the plaintiff has no ground for complaint.

7. We have thus briefly disposed, of the objections urged by plaintiff on the assumption that the instructions complained of were properly excepted to, and, if erroneous, prejudicial to the plaintiff. But it is questionable whether we should have done so. The instructions are correct in point of law. The exceptions are general, and did not call the attention of the court below to the fact that it is claimed that they were outside of the evidence. It has been held that such an objection is unavailing, the proper practice being to call the court’s attention to the contention that the instruction is abstract or irrelevant, and ask that it be withdrawn; and, if the request is denied, to except thereto: Kearney v. Snodgrass, 12 Or. 311 (7 Pac. 309).

8. The verdict of the jury was for the defendant. The evidence was substantially the same as that given on the former trial, and under which the court held as a matter of law plaintiff could not recover because of the contributory. negligence of the decedent. It would seem, therefore, that the error of the court, if any, in instructing the jury, could not have affected a substantial right of the plaintiff, and that the judgment should be affirmed on that ground. In either view, however, that judgment is right, and should be affirmed; and it is so ordered. Affirmed.