Powell v. Sutherlin Land Co.

Me. Justice Eakin delivered the opinion of the court. At the close of plaintiff’s testimony, defendant moved for a judgment of nonsuit; and, at the close of the evidence, moved for a directed verdict. It is principally upon the denial of these two motions upon which defendant bases this appeal. 1. The grounds for the judgment of nonsuit are that plaintiff failed to show any negligence on the part of defendant, but that the accident was the result of plaintiff ’s own negligence, and the risk was assumed by him. It was a question for the jury whether it was negligence on the part of the company to permit the switch on the Oakland circuit to be out of repair or removed from the pole. It was also for the jury to determine whether it was negligence for the company to permit the old poles to remain in use at the time of the accident without testing or repair. These were the issues tendered by the complaint. 2. The answer tenders the issue as to whether the plaintiff was the foreman of the line. It was for the jury to decide whether plaintiff knew or ought to have known the defective condition of the pole. He testified that when he climbed the pole it was all right, so far as he knew, being supported by two guy wires, and that he supposed it to be perfectly safe; so that the court could not take the case from the jury by a judgment of nonsuit. 3. The motion for an instructed verdict in favor of the defendant is dependent largely upon the defense set up in the answer that plaintiff was the foreman in charge of, and responsible for the condition of, the poles and switch upon which there was a dispute in the evidence, and therefore defendant was not entitled to a directed verdict. [410] 4. Error is also assigned in tlie refusal of the court to give requested instructions as follows: “No. 4. If you find from the evidence that the plaintiff knew that the pole upon which he was injured was so dangerous that a prudent person would not climb it, or if an inspection of the pole would have disclosed such dangerous condition, then the plaintiff cannot recover in this action, for the reason that he assumed the risk incident to climbing such dangerous pole. * * No. 6. The plaintiff has alleged in his complaint that he is an electrician and lineman. He is therefore bound by this allegation, and cannot now be heard to say that he did not possess the knowledge and efficiency of the ordinary electrician and lineman, and must be conclusively presumed to have known and appreciated the danger incident to such line of employment. In this connection I also instruct you that it is not necessary to relieve the defendant from liability that plaintiff should have been employed in the capacity as foreman. It is enough that he was employed as a lineman whose duty it was to discover and remedy defects in the line even though he did not hold the position of foreman.” The court in its general instructions to the jury fairly covered the ground stated in these two requests so far as the evidence justified. He instructed the jury to the effect that, if the plaintiff was employed by the defendant to carry on the electric plant, not including the duty of keeping' the poles in repair, then it would have been the duty of the defendant to have done so. Also he instructed them: “If you find * * that the plaintiff knew the defendant had no other servant whose duty it was tó inspect its poles and continued in the employment, * * he assumed the obligation and duty of testing the poles himself. * * ” [411] Many other instructions were given as to the burden of proof upon plaintiff concerning the negligence of the defendant, as to whether plaintiff was the foreman of the line, his responsibility therefor if he was such foreman, and the defendant’s duty if the plaintiff was not foreman of the line, and as to the risk assumed by plaintiff in accepting the employment. We find no error in the refusal of the requested instructions. The judgment is affirmed. Aeeirmed . Rehearing Denied. Mr. Chiee Justice McBride, Mr. Justice Bean and Mr. Justice McNary concur.