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At the trial in the court below a good deal of testimony was given as to the custom in San Francisco in respect to the mode of grading,that on the part of the plaintiffs tending to show that the custom requires the grading to be done fleece by fleece, whereas that on the part of the defendants tended to show that by the custom prevailing among dealers in wool at this place it was sufficient for the graders to rip the sack open from one end to the other, and through such opening conduct their examination. Without conflict the evidence shows that the latter was the method adopted by the graders in this instance; but appellants' counsel say that the evidence also shows, without conflict, that when the plaintiffs objected to the report of rejections made by the graders, the defendants at once offered to have the remaining sacks graded fleece by fleece, and plaintiffs refused. But, notwithstanding such refusal, it was not only the right but the duty of defendants to have the grading conducted fleece by fleece; for, in view of the verdict upon the conflicting evidence, we must take it that the custom so required. They failed in that duty, although retaining the wool in their possession, and, so far as appears, still retaining it. Such being the case, we are of opinion that they become liable to the plaintiffs for the full amount delivered to them at the rate per pound agreed on. A part of this amount was paid prior to the beginning of the action, and for the balance the plaintiffs properly recovered judgment in the court below. Judgment and order affirmed.

We concur: McKEE, J.; MCKINStry, J.

(12 Or. 520)



Filed November 30, 1885.


A witness may not be interrogated as to the mode by which his attendance as a witness was procured. 2. TRIAL-ARGUMENT BEFORE JURY-TIME ALLOWED-DISCRETION OF COURT. The nisi prius judge has the best opportunity for determining, in particular instances, the time necessary for counsel in addressing the jury, and to such judge the statute intended to allow, in this respect, a wise discretion. 3. NEGLIGENCE-DANGEROUS MACHINERY.

A person injured by machinery about which his duty led him to be, if he knew the condition, position, and character of the machinery, and could have reasonably avoided danger by approaching the same from the outward revolutions of the gear, and did not do so because he did not think or look, was guilty of such a degree of negligence as to preclude his recovery


However slight the negligence on the part of a plaintiff may be, if it be such that but for that negligence the misfortune could not have happened, he cannot recover; but if the injury would have happened if his want of care had not contributed thereto, there may be liability.


In order to be in a position to object to a court's failure to charge a jury in a particular way, the party objecting should have made appropriate suggestions to the court before the charge was given.

A. S. Bennett, for appellant, J. S. Hurst.

C. A. Dolph, for respondent, D. W. Burnside.

THAYER, J. Appeal from the circuit court for the county of Multnomah, from a judgment rendered in an action brought by the appellant against the respondent, to recover damages. It is alleged in the complaint in said action, in substance, that on the eleventh day of March, 1883, and prior thereto, the respondent was the owner of and engaged in running and operating a flouring-mill at Oregon City, Oregon; that on said date, and for several weeks prior, the appellant was in the employ of the respondent in and around the mill, as his servant, to watch the machinery thereof, for a compensation to be paid therefor, and it was his duty to ascertain when said machinery was heating or required oil, and to oil it when necessary; that on said eleventh day of March, 1883, and for a long time prior thereto, the machinery was out of repair, and in an unsafe and dangerous condition, and the wheels upon many of the shafts belonging to the machinery were fastened there by keys, which was an unnecessary, dangerous, and unsafe way of fastening them, and that said keys projected out from the ends of said shafts in an unnecessary and dangerous manner; that the respondent had notice of these matters, but had negligently, and with gross and wanton disregard of the safety of his employes generally, and of the appellant in particular, con

1 See note at end of case.

tinued to operate said mill, and to permit said machinery to remain in such unsafe and dangerous condition; that on said date, and in consequence of said respondent's neglect in the premises, one of said keys caught appellant's hand while he was prudently and carefully performing his duties as such servant, and, without fault on his part, threw it between the wheels of said machinery, whereby it was injured to such an extent that he was obliged to have two of the fingers amputated, and for which he claimed general and special damages amounting to $10,000. The respondent, in his answer to the complaint, denied all the material allegations thereof, and alleged affirmatively that the injury was received in consequence of the appellant's own carelessness in the premises.

The issue between the parties involved mainly the questions whether the respondent was guilty of negligence and carelessness in consequence of the condition of the mill at the time the affair occurred, and, if so, was the appellant careless and negligent concerning the matter, and did his carelessness and negligence contribute to the injury? The evidence seems to have been conflicting as to whether the mill was in an unsafe and dangerous condition as alleged in the complaint, and as to whether the appellant was "prudently and carefully performing his duties as such servant" at the time he received the injury. The mill seems to have been in the same condition at the time the accident happened that it was when the appellant commenced his term of service on the first of January preceding, though there was evidence tending to show that the respondent's superintendent had promised, upon appellant's complaining to him, to have it repaired as soon as he completed a contract they were then working upon, but did not. He subsequently, when appellant again complained to him, made another promise to remedy the defect. The jury returned a verdict in favor of the respondent, upon which the judgment appealed from was entered.

The grounds of error specified in the notice of appeal upon which the appellant relies in this court are the following: That the court erred in sustaining the respondent's objection to questions asked upon cross-examination by appellant's counsel to one T. C. Miller, a witness for the respondent, as follows: "Who, if any one, served the subpoena upon you? State whether or not your fees were tendered you at the time the subpoena was served upon you. State what distance you came to attend as a witness in this case." And in the court's saying, in connection therewith, in the presence of the jury, "that the jury would not be justified in drawing any inference tuerefrom, even if the witness were shown to have attended without any subpoena being served upon him at all." Also in limiting the counsel for the appellant to an hour and a half in which to sum up the case to the jury; and in the court's giving certain instructions to the jury which will hereafter be noticed. The case has been very thoroughly and ably presented upon both sides. The counsel for the appellant, by

his brief and argument, has shown that he has investigated every phase of it with the closest scrutiny. Yet after a full consideration of every question, I am inclined to the opinion that his points are not well taken. The real issue between the parties was one of fact, and the court ought not to disturb the finding of the jury unless it is clearly shown that error was committed at the trial.

The first ground of error cannot possibly be maintained. Whether the witness T. C. Miller was subpoenaed by the party or by an officer. or was not formally subpoenaed at all, was of no importance; nor whether any fees were tendered to him, nor the distance he came to attend as a witness. If he had come voluntarily, in order to be a witness in the case, it might have shown a feeling of friendship for the party who called him; but that question was not asked him, and those that were asked him were entirely too remote to elicit any material fact. Suppose he had answered the question by saying "that no subpoena had been served upon him;" "that the respondent had requested him to attend, and that he consented to do so;" "that he had waived the formal service of subpoena,"-what possible discredit could it have cast upon his testimony; and the same inquiry may be made if he had answered that no fees were tendered him. I think the court concluded rightly "that the jury would not be justified in drawing any inference therefrom, even if the witness were shown to have attended without any subpoena being served upon him at all,” and it might have added "without having required the prepayment of his fees."

The second ground of error, the limiting of the appellant's counsel to one hour and thirty minutes in which to argue the case to the jury, I believed to be more serious, as I had always entertained the view that the statute gave two hours on a side in such cases. It reads as follows:

"Not more than two counsels on a side shall be allowed to address the jury on behalf of the plaintiff or defendant; and the whole time occupied on either side shall not exceed two hours, unless the court, for special reasons, shall otherwise permit." Section 194, sub. 4, Civil Code.

But a careful observance of the language will show, I think, that the legislature did not intend to grant any definite time in which counsel might address the jury. It merely provided that the whole time occupied for that purpose should not exceed two hours on a side; and left in the court the power to permit, for special reasons, a longer time. The provision was a restriction upon the power of the court; it cannot permit any more time to be occupied than that unless for special reasons. Courts at common law had the right to limit the time counsel should occupy in addressing the jury, and the statute confers the same right. It is included in the authority "to control, in furtherance of justice, the conduct of its ministerial officers, and all other persons in any manner connected with a judicial proceeding before it, in every matter appertaining thereto." Section

884, sub. 5, Civil Code. The legislature, by the former section, limits the said time to two hours on a side, leaving in the court the right to extend it for good reasons; but it has not restricted the power of the court from limiting it still more. It has not interfered with the power of the court, except as before stated. The latter may allow counsel to occupy two hours on a side for the purpose mentioned, but it has no authority to permit them to occupy a longer time unless there are good reasons for so doing. Its power so far is restricted, but in no other particular. A trial might and often does take such a course that only a single question of fact is left for the consideration of the jury, and that may involve the credibility of but one witness. In such a case it would require a great amount of patience upon the part of a nisi prius judge to be compelled to sit four hours and listen to the harangue of a garrulous counsel. It was contended by the appellant's counsel that, irrespective of the statute, the circuit court, in view of the importance of the case, extent of the testimony, its contradictory character, and of the intricate points of law involved in it, abused its discretion in limiting the time as it did herein. However that may have been as a matter of fact, it does not appear with sufficient certainty to justify our interference with the judgment, though I would be much more satisfied with the proceeding if the court had allowed counsel two hours upon a side; yet I must concede that the presiding judge had the better opportunity to determine that matter.

The third assignment of error involves the correctness of the fifth and eighth instructions given by the circuit court to the jury. The following is a copy of the said instructions respectively:

(5) "If you believe from the evidence that the plaintiff knew the position, condition, and character of the machinery by which he was injured, and could have reasonably avoided danger by approaching the same from the outward revolutions of the gear, and did not do so because he did not think or look, then he was guilty of negligence precluding his recovery, and your verdict must be for the defendant." (8) "It was the duty of plaintiff, when approaching machinery about which he is employed, both to think and look in order to avoid injury from such machinery; and if you find from the evidence that the injury sustained by the plaintiff was received by reason of his failure to think or look as to what he was doing, he was guilty of such negligence as precludes his recovery, and your verdict should be for the defendant."

The complaint against these instructions is that they were given without qualification; that the circumstances under which the appellant was situated at the time he approached the machinery to ascertain whether any of the shafts were heating,-his inexperience, the machinery having been previously heating, the smell of burning oil, and the necessity of haste,-were disregarded; that the evidence showed an emergency had arisen, and the court did not allow the jury to consider it; that it, in effect, took these circumstances from the jury. But it must be remembered that the evidence upon that point was conflicting; that there was evidence upon the side of the respondent which tended to show that the achinery in all respects

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