Saylor v. Enterprise Electric Co.

• Decision Date: 26 February 1924
• Citation: 223 P. 725,110 Or. 231
• Parties: SAYLOR v. ENTERPRISE ELECTRIC CO.
• Court: Oregon Supreme Court

223 P. 725

110 Or. 231

SAYLOR v. ENTERPRISE ELECTRIC CO.

Supreme Court of Oregon

February 26, 1924

In Banc.

Appeal from Circuit Court, Wallowa County; J. W. Knowles, Judge.

On motion for rehearing. Denied.

For original opinion, see 222 P. 304.

A. S. Cooley, of Enterprise, for petitioner.

Danial Boyd, of Enterprise, opposed.

BROWN J.

The defendant, in its petition for rehearing, asserts that this court erred in holding that the question of contributory negligence was a question for the jury, and in refusing to hold that the plaintiff's decedent, Carl Saylor, was guilty of contributory negligence as a matter of law.

For a full statement of the facts in this case and the former decisions of this court involving like questions, see opinion (222 P. 304) filed January 22, 1924.

The defendant, Enterprise Electric Company, maintained a line whereby it was transmitting electric currents of a dangerous voltage, through its wires suspended on poles placed along the county road at intervals of about 300 feet, and it had allowed its wires to sag over a gateway opening into the county road from the farm from which Saylor was attempting to move the derrick on the day he was killed.

The decedent, a farmer, was engaged in harvesting his crop of hay. On the day of his injury, he was moving from one farm to another a hay derrick of the dimensions commonly used by farmers in that locality, and, in doing so, was required to pass through the gateway referred to. Previous to the accident, this same hay derrick had been transported through the gateway upon a number of occasions, and Saylor had been instructed how to take it through.

The defendant discusses this case, in his brief, upon the theory that plaintiff's decedent voluntarily placed himself in a place of danger, and that at the time he drove the hay derrick into the gateway leading to the public road he knew that the electric lines were carrying a dangerous voltage of electricity.

It is true that after the electric line came in contact with the derrick, Saylor learned that the lines were carrying a current of electricity. But the testimony does not show that he was informed, or knew, prior to his attempt to extricate the hay derrick from the transmission wires, that electricity was being transmitted over those lines. Tom Bales testified of his words of precaution to Saylor, and swore that Saylor "was very careful."

It is familiar law in Oregon that in ruling upon a defendant's motion for nonsuit, all competent evidence in the record is entitled to be considered by the court in the light most favorable to the plaintiff; and every reasonable intendment and every fair and legitimate inference, which can arise from the evidence, must be made in favor of the plaintiff. Roberts v. Cohen, 104 Or. 177, 206 P. 295; Farrin v. State Industrial Accident Commission, 104 Or. 452, 205 P. 984, and the local citations there given.

"A motion for nonsuit is a demurrer to the evidence and admits the truth of the evidence and every reasonable inference of fact which the jury may infer from it, and, if different conclusions can be drawn from the facts, the case should be left with the jury." Herrick v Barzee, 96 Or. 357, 371, 190 P. 141, 145.

To like effect is Watts v. Spokane, Portland & Seattle Ry. Co., 88 Or. 192, 196, 171 P. 901.

Again:

"And to justify granting a nonsuit facts should be not only undisputed, but conclusions to be drawn from them indisputable. If different minds may honestly draw different conclusions from the facts, though undisputed, the case should be left to the jury. Peabody v. O. R. & N. Co., 21 Or. 121, 26 P. 1053, 12 L. R. A. 823." Jackson v. Sumpter Valley Ry. Co., 50 Or. 455, 93 P. 356.

And again we have:

"Where men of reasonable minds might draw different conclusions from the evidence, the case is for the jury; and this is so, although the evidence is uncontradicted. When facts proved without dispute require the exercise of reason and judgment, so that one reasonable mind may infer that a controlling fact exists, and another, that it does not exist, there is a question of fact." 38 Cyc. 1539, 1540.

To similar effect, see Piper v. Green, 216 Ill.App. 590; Bank v. Colthurst, 195 Iowa, 1032, 188 N.W. 844, 191 N.W. 787; Montecalvo v. Wahl (N. J. Err. & App.) 117 A. 621; Shaughnessy v. Director-General, 274 Pa. 413, 118 A. 390, 23 A. L. R. 1211; Partridge v. Cole, 96 Vt. 281, 119 A. 398; Tel. Co., Inc., v. Hall (C. C. A.) 287 F. 297.

In Klein v. City of Portland, 106 Or. 686, 213 P. 147, 150, Mr. Chief Justice McBride wrote:

"Contributory negligence is a question of fact, unless no other conclusion can be drawn from the evidence."

In Strang v. Oregon-Washington R. R. & N. Co., 83 Or. 644, 651, 163 P. 1181, 1183, the railroad company defended upon the ground that the plaintiff was guilty of contributory negligence. Mr. Justice Burnett said:

"The standard by which diligence or negligence is to be judged is the conduct of a reasonably prudent man under the conditions disclosed by the evidence, and the court is not justified in directing a nonsuit unless no reasonable conclusion can be drawn from the evidence except that the plaintiff was remiss in his duty under the circumstances. Ordinarily and almost uniformly this is a question of fact for the jury. * * * It was for the jury to determine whether Strang acted as a reasonably prudent man would in such a juncture."

Whether a person acted as a reasonably prudent man in his situation and with his knowledge, under like circumstances, would have acted, must be determined by the trial jury, unless the testimony is so plain against him that reasonable men could arrive at no other conclusion than that he was negligent.

In Bush v. Weed Lbr. Co. (Cal. App.) 218 P. 618, the court said:

"In order to sustain the contention of appellant is must be

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