Greenwood v. Eastern Oregon Power Co.

Opinion by Mr. Chief Justice McBride. 1. One of the principal points relied upon by defendant on this appeal is the contributory negligence of the plaintiff. There is evidence tending to show that plaintiff was moving his hay derrick, which had a mast or pole reaching to a height of 29 feet and 4 inches above the surface of the road, and was sub [441] stantially of the same construction and height as other derricks in common use in Union County; that he had previously driven under this line of wires with another derrick, which he supposed was about the same height, but which was, in fact, somewhat lower, without injury, and that upon the day of the injury he drove under these wires, which were placed so low that the top of the derrick came in contact with a live uninsulated wire of defendant’s power line, causing him to receive the shock which occasioned the injury. Plaintiff saw the wires, and, no doubt, knew the danger which might ensue in case the pole of his derrick should come in contact with them; but it was for the jury to say, in view of all the evidence, whether, under all the circumstances, a reasonably prudent and careful man would have been justified in assuming that the defendant had placed its wires at such a height or so insulated them that they would not be a source of danger. 2. The question of contributory negligence is rarely a question of law for the court, but usually a question of fact for the jury. It is only where the facts are undisputed, and only one inference can be ‘drawn from the testimony, that the question is for the court. When there is a conflict of evidence, or even when the facts are undisputed, but different inferences may be drawn therefrom, it is a question of fact for the jury: Webb v. Heintz, 52 Or. 444 (97 Pac. 743); Nosler v. Coos Bay R. Co., 39 Or. 331 (64 Pac. 644); Wolf v. City Ry. Co., 45 Or. 446 (72 Pac. 329, 78 Pac. 668); Lewis v. Rio Grande Western Ry. Co. (Utah), 123 Pac. 97; Reynolds v. Los Angeles Gas & Electric Co., 162 Cal. 327 (122 Pac. 962, Ann. Cas. 1913D, 34, 39 L. R. A. (N. S.) 896). 3. The evidence of the negligence of defendant in allowing its wires to be maintained in the position in which they were was sufficient to go to the jury. Ir [442] respective of the allegations in the complaint in respect to the franchise granted by the County Court, the complaint states a good cause of action against said defendant for negligence. The instructions given by the court practically eliminated the franchise from the case, and it was given to the jury as a common-law action for negligence. 4. The evidence tends to show that derricks of the same character as that driven by plaintiff are common in Union County, and it was the duty of the defendant to have used care commensurate with the extremely dangerous character of the force it was engaged in transmitting in maintaining its wires at crossings as to minimize their danger to citizens lawfully using the public roads. The measure of care required of defendant is well stated in Shank v. Great Shoshone etc. Water Power Co. (C. C. A.), 205 Fed. 833, which was a case arising, as did the one at bar, from a hay derrick having come in contact with an electric wire. Judge Morrow, referring to the defendant in that case, said: “It was clearly its duty to have used every reasonable precaution to raise and keep its high power transmission wires sufficiently high above ground for the safe passage of such structures as the plaintiff was engaged in moving at the time and place he was injured. Such structures were common to that locality. It was not of unusual height, and its passage along the highway over the bridge was to be expected at any time.” To the same effect are Perham v. Portland Gen. Elec. Co., 33 Or. 451 (53 Pac. 14, 24, 73 Am. St. Rep. 730, 40 L. R. A. 799); Fitzgerald v. Edison Elec. Mfg. Co., 200 Pa. 540 (50 Atl. 161, 86 Am. St. Rep. 732); Ermis v. Gray, 70 Hun, 462 (24 N. Y. Supp. 379). It would have been but a small item of expense to defendant to have placed its wires high enough above [443] the road to have eliminated all probability of danger to persons traveling on the highway, and, if it neglected this precaution to the injury of a citizen, the courts will not search for technical reasons to protect it from the consequences of its carelessness. We have carefully examined the instructions requested by and refused both parties as well as those given, and have come to the conclusion that no substantial error was committed, and that a correct verdict and judgment were rendered in the case. .The judgment is therefore affirmed. Affirmed.