Suey v. Benson Hotel Co.

BENSON, J. The assignments of error, five in number, allege error in the giving of one instruction, and in the refusal to give four which were requested by the defendant. Among other elements of the charge, the court advised the jury as follows: “There was passed by the people of the State of Oregon an initiative law, which became effective on proclamation of the Governor, on December 3, 1910, and was the law at the time the accident complained of herein occurred, to wit, August, 1917, and I will read you a portion of said law, which says: ‘and generally all owners * # having charge shall use every device, care and precaution which is practicable to use for the protection and safety of life and limb, limited only by the necessity for preserving the efficiency of [399] the structure, machine or other apparatus or device and without regard to the additional cost of suitable material or safety appliances and devices.’ “Now put in a little different form, this act means every owner of any device which involves danger to persons using it, or being conveyed by it, shall use every care and precaution practicable for the protection and safety to persons, limited only by the necessity of preserving the efficiency of the device or machine; and that must be done without regard to the expense of it. “So far as that law is concerned, therefore, you should investigate and find out as a matter of fact whether or not the defendant in this case could have used any device or protection so as to have prevented the accident complained of; and still have permitted a proper and efficient use of the elevator; and the question of the additional cost is not material. “If in this case you should find that the defendant could have used some device or some protection, so as to have prevented this accident, and at the same time have permitted an efficient operation of the elevator, then the defendant in the case is liable under the law referred to. In other words, a person operating a device which involves danger to those who operate -it, or to those who may use it, must at his peril adopt every device for the safety of the people who use it; and if the owner or person operating it does not do so he must respond in damages in case of an injury.” 1. Counsel for defendant challenges this statement of the law in two particulars: First, that it omits any reference to necessary proof that the alleged negligence of defendant was the proximate cause of the injury. If the instructions when read as a whole, were lacking in this vital element of the plaintiff’s burden, there would be merit in defendant’s contention, but we find that at another point in the court’s charge, this language was used: [400] ‘‘Before the plaintiff is entitled tom verdict he must satisfy you by a preponderance of the evidence, that the negligence of the defendant was the proximate cause of the injury.” And yet again, the court said to the jury: “Before you can find a verdict for the plaintiff you must be satisfied by a preponderance of the evidence that the defendant company was guilty of negligence and that this negligence produced the injury.” We do not understand that a trial court must incorporate all of the law relative to a giyen state of facts into one sentence or into one paragraph of his charge, but that it is sufficient if upon a consideration of the entire charge, he has given to the jury a clear statement of the legal principles involved,, sufficient to enable them to arrive at a just verdict upon the facts: State v. Megorden, 49 Or. 259 (88 Pac. 306, 14 Ann. Cas. 130), and cases there cited. * The other ground of attack is the contention that the court erred in using this language: “If in this ease you should find that the defendant could have used some device or some protection, so as to have prevented this accident, and at the same time have permitted an efficient operation of the elevator, then the defendant in the case is liable under the law referred to.” It is urged that this language is so broad that it permits the jury to hold the defendant liable for the absence of any device, regardless of whether the absence of such device was pleaded and regardless of whether the absence of such device was supported by any evidence. , Here, again, the instruction which is criticised must be read in connection with its context. We find the court also saying to the jury: [401] “You would not be justified in returning a verdict for the plaintiff if you should find he was hurt in an entirely different way altogether from what he has set up in his pleadings. He has set up in his pleadings a story, and substantially he must prove that story.” The complaint specifies the particulars in which it is alleged that the defendant was negligent, and the facts as to the absence of the device specified in the complaint are recited in the stipulation of the parties. It follows, that even if the court had failed to advise the jury that the plaintiff must prevail, if at all, upon the facts alleged in his complaint, the record is so free from a suggestion of any other device, or any other species of negligence, that before we could say that the jury was misled by the language of which complaint is made, we must refuse to concede to the jury the possession of normal intelligence. 2. The third assignment complains that the court refused to give the following instruction: “If you find that the injuries suffered by the plaintiff resulted solely from his own carelessness and negligence in the manner in which he placed himself upon this elevator, then I instruct you that he cannot recover in this action, and your verdict must be for the defendant.” The answer to this assignment is that the court covered the same ground in these words: “If you find that the injuries suffered by the plaintiff resulted entirely from his own carelessness and conduct in the manner in which he placed himself in the elevator, then of course he cannot recover; because that assumes that there was no negligence on the part of the hotel company. But in order to entitle him to recover he must show negligence such as I have defined to you, or negligence under the statute, before he is entitled to recover. ’ ’ [402] 3. The fourth assignment is to .the effect that the court erred in refusing to give as requested, the following : “It was the duty of the plaintiff, Low Suey,'to use his senses and faculties to avoid injury in going upon this elevator, and if you find that he could have taken a safe position on this elevator, but that instead of doing so he occupied a dangerous position near the edge of the platform, and that in sp doing he brought upon himself the injuries of which he complains, then I instruct you that he cannot recover in this action and your verdict must be for thje defendant hotel company.” i This request apparently ignores, the fact that the action is properly founded upon th'e Employers’ Liability Act (Laws 1911, p. 16), under the provisions of which there should be no dangerous position upon the platform, and such negligence could no more than contribute to the injury, and therefore could not be a defense: Gunnell v. Van Emon Elevator Co., 81 Or. 408 (159 Pac. 971). The fifth assignment of error is!so closely akin to the one just discussed, that it requires no further comment. i Finding no error in the- record, the judgment is affirmed. Affirmed.