Nutt v. Isensee

Mr. Justice McBride delivered the opinion of the court. 1. We have carefully examined the record in this case, and find it free from any material error. Without consuming space in the reports by a discussion of the testimony in detail, it is sufficient to say that, in our judgment there was testimony tending, in some degree, to sustain the allegations of the complaint; and therefore the court did not err in its refusal to sustain a motion for a nonsuit. It is true that the testimony was contradictory, but the jury was the judge of its value and effect. 2. There was no substantial error committed in the refusal of the court to give defendant’s requested instruction No. 2, relating to the effect to be given to Dr. Hockey’s testimony. The court in its general charge expressly told the jury that plaintiff’s recovery must be limited to the particular injury alleged in the complaint, and the instruc [399] tion requested amounted merely to a repetition of the same instruction in different language. We are of the opinion that the subject was sufficiently covered by the instructions given. 3. Instruction No. 3, requested by defendant, does not correctly state the law. It is not sufficient to defeat a recovery that plaintiff should have known that the machine was defective. He must also have known, or had reason to believe, that the defect was a probable source of danger. As was said by Mr. Justice Lord, in Roth v. N. P. L. Co., 18 Or. 205 (22 Pac. 842): “It is to be borne in mind that there is a difference between a knowledge of the facts and a knowledge of the risks which they involve. One may know the facts, and yet not understand the risks; or, as Mr. Justice Byles observed, ‘a servant, knowing the facts, may be utterly ignorant of the risks.’ ” To the same effect is Johnson v. O. S. L. Ry. Co., 23 Or. 94 (31 Pac. 283). 4, 5. There was no error in the court’s modification of requested instruction No. 4. Taken in connection with the general charge, the law is correctly stated. Request No. 5 is substantially covered by the general charge. Request No. 6 was properly denied. It was not the business of the court to instruct the jury that “machinery often gets out of order,” etc. The jury was considering the evidence in regard to the machine operated by plaintiff and as to it, there was no evidence that such machines are liable to often get out of order, but there was strong evidence tending to show that, with ordinary care and attention used in fastening the. key or friction plate to the machine, it was not likely to get out of position or fly off. The last instruction requested is sufficiently covered in the general charge, which was admirable, and covered all the issues. A party is not entitled to have an instrue [400] tion given in language suggested by himself, if the substance of it is covered by other instructions framed by the court. In this case the court was exceedingly fair to the defend- . ant, and we are sure that no instruction, refused or given, resulted in any substantial injury, and the verdict of $300 seems to us to have been based upon an exceedingly moderate estimate of plaintiffs injuries. The judgment is affirmed. Affirmed.