Johnston v. Oregon Short Line Ry. Co.

Citations

• 23 Or. 94
• 31 P. 283
• 1892 Ore. LEXIS 108

Syllabus

<p>1. Bill op Exceptions — Pbactice__A bill of exceptions which is merely a transcript of the stenographer’s notes will not be stricken out, although it contains much immaterial matter, when it was allowed as a bill of exceptions without objection, and the error, if any, to be reviewed, is the granting of a nonsuit. Eaton v. O. B. & N. Go. 22 Or. 497 (30 Pao. Rep. 311), distinguished.</p> <p>2. Pleading Conteebutoby Negligence as a Depense.— Contributory negligence is a defense and must be so pleaded. It is not necessary for the plaintiff to allege that he was free from negligence. Kahn v. Love, 3 Or. 206; Welch v. O. B. & N. Go., 10 Or. 253, and Goughtry v. By. Go., 21 Or. 245 (27 Pac. Rep. 1031) criticised; Grant v. Baker, 12 Or. 329 ( 7 Pac. Rep, 318), approved.</p> <p>3. Res Gestas — Evidence.—A statement made by an injured party immediately after the accident is no part of the res gestos and should not be received in evidence. Sullivan v. O. R. & N. Oo. 12 Or. 392 ( 5 Pac. Rep. 508) followed.</p> <p>4. Evidenc. — A witness cannot be allowed to state whether it was proper for a railroad switchman to ride upon the ladder of a freight car — it was the province of the jury to decide that on the evidence.</p> <p>5. Master and Servant — Risk of Employment — Ordinary and Extraordinary Hazards.— A servant assumes the ordinary hazards of an employment, but he has a right to assume that the master will furnish him a safe place to work, and that the instrumentalities of the business are and will be kept in good repair. Under his contract of employment, a servant does not assume risks that are extraordinary or not incident to the employment, and as to such dangers it is the master’s duty to point them out and warn the servant of their dangerous nature.</p> <p>6. Idem — Dangerous Obstruction.— A railway brakeman has a right to assume that no obstruction will be placed dangerously near the track, and in the absence of notice he may recover if injured'thereby.</p> <p>7. Injur