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was in good condition and ordinarily safe; that the key did not project, and that it would not be dangerous if it did; that it was customary to permit such keys to project; that the general condition of the machinery was good; that the appellant should have approached the particular gearing from the other side, and that there was nothing to prevent him from so doing; that the appellant had made different statements in relation to the shaft after he got hurt, and, at some five or six different times, had told different persons that the accident was caused by his own carelessness, and that it would not have occurred if he had not been in such a hurry to get away, so as to have a few hours to himself, and his being in a hurry and thinking about something else at the time. It was doubtless in view of all the testimony that said instructions were given. The court did not assume, and it had no right to assume, the correctness of the testimony on either side. If that adduced by the appellant had been conceded to be true, there would, from the appellant's stand-point, have been more ground for complaint. It cannot be maintained that the instructions were erroneous as abstract propositions. The fifth one is to the effect that if the appellant 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, he was guilty of such a degree of negligence as to preclude his recovery. I think that is clearly maintainable as a correct proposition of law. The eighth one is to the effect that it was the duty of the appellant, when approaching machinery about which he was employed, both "to think and look" in order to avoid injury from such machinery; and if he received the injury by reason of his failure to "think and look" as to what he was doing, he was guilty of such negligence as precluded his recovery. That is also, as it appears to me, a correct proposition of law; nor do I understand that the appellant's counsel controverts either of these conclusions; but he contends that, under the peculiar circumstances of this case, they are incorrect, because he says the evidence shows that the state of affairs before mentioned existed. He cannot, however, maintain that. The evidence adduced by the appellant may, and doubtless did, tend to show it; but the evidence of the respondent showed quite to the contrary. It may be claimed that the court, admitting the correctness of the counsel's position, should have charged that if the facts. were as the appellant claimed,-that the appellant did not "think or look" in consequence of the exigency of the case and the flurried condition of mind he was in, occasioned thereby,-his failure to "think and look" would not be such negligence as would necessarily preclude his recovery; or, in other words, that the jury should take such facts and circumstances into consideration in determining whether the appellant was guilty of negligence or not. But the court was not asked to charge that; nor was the charge it gave necessarily inconsistent there

with, and the instructions referred to were not in and of themselves erroneous. If, therefore, the appellant's counsel is correct in his position regarding the law in such a case, it does not follow that the court committed error as alleged. This view of the case did not probably occur to the mind of the court. In the hurry and confusion attending a jury trial, the presiding judge cannot be expected to instruct in regard to every view in which the facts of a case may be considered without having his attention directed to it. His neglect in that particular should not, therefore, be held to be error where his attention was not directly called to the matter by an appropriate prayer for instructions. It is unnecessary to speculate upon the consequences that would have followed if such an instruction upon the point under consideration had been asked and refused. I am inclined to believe, however, that if the facts were as the appellant claimed in regard to the condition of the mill and machinery, and that the other circumstances existed when the injury was received, the question of appellant's negligence should have been submitted to the jury and have been determined in view of those facts and circumstances. Whether a person in a certain affair has acted carelessly and imprudently or not, depends very much upon the condition in which he is placed. The same prudence and deliberation would not be expected from him in case a house was on fire as would be in ordinary occurrences. But the view we have taken of this matter renders it unnecessary to express any opinion upon that point. It is sufficient to determine that the two instructions considered were not erroneous as given, whatever might have been the case if prefaced as before suggested. This court, in Stone v. Oregon City Manuf'g Co., 4 Ore. 52, held that the refusal of an instruction, similar in terms to the said two instructions, was error, and reversed the judgment. The court there said "that there is very little machinery in a woolen-mill but what is dangerous to careless and thoughtless operatives; consequently we hold that it was the duty of respondent, while engaged in working in the vicinity of such machinery, to exercise his thinking faculties, and give careful attention to the business in which he was engaged. If he failed to do so, and was injured in consequence thereof, it was such negligence as contributed to his own injury, and would prevent his recovery in the action." This I believe to be the general rule in such cases, and it is decisive of the present question. If the fact and circumstances surrounding the affair in which the party received the injury were such as to excuse him from that degree of care and thoughtfulness a prudent man would ordinarily exercise, they should, I think, be taken into consideration by the jury in determining the question of the party's negligence. But where, as in this case, such facts and circumstances are controverted, and the court fail to call the attention of the jury to them, the counsel for the party should so frame the instruction desired as to secure their benefit in case they are found to exist. The true test as to whether the party is chargeable with neg

ligence in such a case is whether the act is such that a man of ordinary prudence would not have done it under all the circumstances. The fourth and last ground of error this court is required to consider is the correctness of the seventh instruction given to the jury. The following is a copy of the said instruction:

"(7) It is a general principle that a person cannot recover for an injury occasioned by the negligence of another, unless he himself is without negligence contributing to the injury of which he complains. If, therefore, you find from the evidence that the negligence, carelessness, or want of care on the part of plaintiff contributed to the injury of which he complains, he cannot recover in this action, and your verdict must be for the defendant."

The appellant's counsel contends that the instruction is incorrect, in not specifying the degree of negligence that must contribute to the injury to prevent a recovery; that there are three degrees of negligence: slight, ordinary, and gross; and that a party may contribute slight negligence to the injury, and still recover on account of the negligence of the adverse party. The instruction was evidently intended only to lay down the ordinary rule upon the subject, and the language employed is the same that is commonly used in stating the general principle which governs in such cases. The The jury could not possibly have been misled in consequence of any omission in the particular mentioned, even if it were necessary to make the distinction, as the next following instruction fully explained the degree of negligence required to be shown in order to defeat a recovery in the action. By the eighth instruction the jury were told as follows:

"If you find from the evidence that the injury in question was caused by some negligence upon the part of the defendant, amounting to want of ordinary care, and that the plaintiff himself exercised ordinary care in the matter, then it would be no defense that the plaintiff might have avoided the injury by the utmost possible care. Extraordinary care on the part of the plaintiff is not required, and its absence would not excuse the defendant."

This fully served to explain the previous instruction in the respect mentioned, and it is idle to contend that the jury could have been misled upon the point. Besides, I do not concede that a party can recover in such a case, when chargeable with any degree of negligence upon his part if it directly contributes to the injury. A person may be negligent in any affair and still recover on account of the negligence of another party, but not when his negligence is the proximate cause of the injury. The law does not enforce contribution between joint tort-feasors. However slight the negligence upon 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 a liability. I am inclined to the belief that said instruction is correct, without any explanation. Affirmed.

WALDO, C. J., did not sit in this case.


Master and Servant-Defective Machinery.

It is a general rule, applicable to all kinds of service, that a master who negligently fails to furnish his servants with safe machinery, means, and appliances for doing the work required to be done, is liable for injuries to the servant caused by such negligence, Thompson v. Hermann, (Wis.) 3 N. W. Rep. 579, although the negligence of a fellowservant contributed to the injury. McMahon v. Henning, 3 Fed. Rep. 353. A master is bound to use reasonable care and prudence in selecting what he requires in his business which every prudent man is expected to employ, in providing himself with the conveniences of his occupation. Clark v. St. Paul & S. C. R. Co., (Minn.) 9 N. W. Rep. 581; Gates v. Southern M. R. Co., (Minn.) 9 N. W. Rep. 579; Russell v. Minneapolis & St. I. Ry. Co., (Minn.) 20 N. W. Rep. 147; Ransier v. Minneapolis & St. L. Ry. Co., (Minn.) 20 N. W. Rep. 332; and it is his duty to keep the machinery in such condition as, from the nature of the business and employment, the servant has the right to expect that it would be kept, and where he fails to do so, he is liable for injuries arising from his negligence. Totten v. Pennsylvania R. Co., 11 Fed. Rep. 564._ Intrusting such duty to a servant or agent does not relieve the master. Thompson v. Drymala, (Minn.) 1 N. W. Rep. 40; Ransier v. Minneapolis & St. L. Ry. Co., (Minn.) 20 N. W. Rep. 332. See Herbert v. Northern Pac. R. Co., (Dak.) 13 N. W. Rep. 349. And it was said by the supreme court of Minnesota in the recent case of Kelly v. Erie Telegraph & Telephone Co., 25 N. W. Rep. 706, that a servant to whom a master trusts the duty of furnishing machinery or appliances for other servants to work with is not their fellow-servant so as to prevent liability of the master to them for injuries caused by his negligence in performing that duty.

A master is not bound to adopt the safest method of working. Naylor v. Chicago & N. W. Ry. Co., (Wis.) 11 N. W. Rep. 24. But where he introduces, without notice to his employes, new and unusual machinery, involving unexpected or unanticipated danger, through the introduction of which the employe, while using the care and diligence incident to his employment, meets with an accident, the master is liable. O'Neil v. St. Louis, I. M. & S. Ry. Co., 9 Fed. Rep. 337.

It is held in Stringham v. Stewart, (N. Y.) 3 N. E. Rep. 575, that the fact that a fellow-servant may, by care and caution, operate a defective and dangerous machine so as not to produce an injury to others, does not exempt the master from his liability for an omission to perform the duty which the law imposes upon him of exercising reasonable care and prudence in furnishing safe and suitable appliances for the use of his servants.

In an action for injuries, resulting from defects in machinery, it must be shown that the master had knowledge, or, by the exercise of reasonable care and diligence, should have known, of the defect, before a recovery can be had. Ballou v. Chicago, & N. W. Ry. Co., 11 N. W. Rep. 559; Atchison, T. & S. F. R. Co. v. Ledbetter, (Kan.) 8 Pac. Rep. 411. Where perils in business are increased by reason of the use of defective appliances, known to the master, or for which he is responsible, and unknown to the servant, and the servant is injured by reason of such defective machinery, the master will be liable. Hobbs v. Stauer, (Wis.) 22 N. W. Rep. 153. And where a master furnishes defective machinery, not of such character that it may not be reasonably used, and the employe uses the same skillfully, believing that there is no immediate danger, he does not assume the risk. Sioux City & P. R. Co. v. Finlayson, (Neb.) 20 N. W. Rep. 860. It being manifest that a certain piece of mechanism is incomplete, and has been used in its incomplete condition, the proprietor cannot shield himself from responsibility for any injury occurring therefrom by alleging ignorance of its condition, and of the danger thereof. Broderick v. Detroit Union R. St. & Depot Co., (Mich.) 22 N. W. Rep. 802.

1. RAILROAD COMPANIES. The supreme court of California say, in the case of Rodgers, Adm'x, v. Central Pac. R. Co., 8 Pac. Rep. 377, that railroad companies are bound to provide for employes a good and safe road, with proper engines, cars, and appliances, for conducting the business. It is said in Gravelle v. Minneapolis & St. L. Ry. Co., 11 Fed. Rep. 569, that a railroad company is bound to furnish to its employes reasonably safe and convenient machinery with which to perform their duties, and if it fails in this, and an employe is injured on that account, without fault of his own, it is liable in damages. Where a brakeman on a gravel train was injured by reason of a defect in the track, which was being repaired, but of the condition of which he had no knowledge or notice, it was held not a risk assumed, and that the company was liable. Madden v. Minneapolis & St. L. Ry. Co., (Minn.) 20 N. W. Rep. 317.

It is said in Gottlieb v. New York Cent., L. E. & W. R. Co., 3 N. E. Rep. 344, that a railroad company is bound to inspect foreign cars which it draws over its road, just as it would inspect its own cars, and is responsible to its employes for the consequence of such defects in such cars as would be disclosed or discovered by ordinary inspection; and that employes assume no more risks of defects in foreign cars than in cars belonging

to the company. But one employed to remove disabled cars to repair shops assumes the perils thereof. Flannagan v. Chicago & N. W. Ry., (Wis.) 7 N. W. Rep. 337.

2. PROMISE TO REPAIR. Where a master has expressly promised to repair a defect in the machinery used by the servants in his employment, the servant may recover for an injury caused thereby within such a period of time after the promise as would be reasonable to allow for its performance. Parody v. Chicago, M. & St. P. Ry. Co., 15 Fed. Rep. 205. And thus where a servant having knowledge of defects in an engine, and having given notice to his employer, may, upon the master's promise to remedy the same, and at his request, continue in the service and recover for his injuries received before the expiration of the time within which the defects were promised to be remedied, where the defects were not so imminently dangerous that ordinary prudence would require a refusal longer to use it; and, under such circumstances, the servant was entitled to recover though aware of the risks as well as of the existence of the defects. Greene v. Minneapolis & St. L. Ry. Co., (Minn.) 17 N. W. Rep. 378. A promise to repair made by the agent of the master is binding on such master. Parody v. Chicago, M. & St. P. Ry. Co., 15 Fed. Rep. 205.

(13 Or. 78)

ADAMS, Adm'x, v. RUTHERFORD and others.

Filed December 3, 1885.

1. NEGOTIABLE INSTRUMENT-PAYMENT AT A PARTICULAR PLACE-TENDER. Where a note and interest are made payable at a particular place, the payor must be at that place when the note or interest matures, ready and willing to pay the same, and if the payee be not there to receive it, must deposit the amount due in some bank or other place, to be paid or kept intact; and in either case, if suit be commenced, carry it into court and deposit it there when he files his answer. Anything short of this will not amount to a tender, or relieve the debtor from liability.


Where a note, by its terms, is payable, principal and interest, at a specified place, and, if the interest is not paid when due, the whole to become due and payable,. the payee must be at the place of payment when the interest matures, or have designated some one there to receive such interest, or he will not be entitled to claim that a default has been made, and that the whole debt is due and payable.

WALDO, C. J., dissenting.

C. J. McDougall, for appellant, Sila A. Adams, Adm'x.

Wm. M. Ramsey, for respondents, R. H. Rutherford and others. THAYER, J. This appeal is from a decree of the circuit court for the county of Marion, rendered in a suit brought by the appellant against the respondents to foreclose a mortgage. It appears that on the twenty-third day of August, 1883, the respondent R. H. Rutherford executed to one Jesse Adams a promissory note, of which the following is a copy:

"On or before five years after date, without grace, I promise to pay to the order of Jesse H. Adams, at Salem, Oregon, twenty-three (2,300) hundred dollars in gold coin of the United States of America, of the present standard value, with interest thereon in like gold coin at the rate of eight per cent. per annum from date until paid, for value received. Interest to be paid annually, and if not so paid the whole sum, both principal and interest, to become immediately due and collectible at the option of the holder of this note; and in case suit or action is instituted to collect this note, or any portion thereof, I promise and agree to pay, in addition to the costs and disbursements provided by statute, such additional sum in like gold coin as the court may adjudge reasonable for attorney's fees, to be allowed in said suit or action.



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