Dygert v. Eugene

143 P. 643, 72 Or. 1, 1914 Ore. LEXIS 1

• Court: Oregon Supreme Court
• Decided: July 28, 1914
• Status: Published

Opinion

Opinion by

Mr. Chief Justice McBride.

1. The foregoing statement is greatly condensed, but is deemed sufficient to cover the points raised upon this appeal. The evidence for plaintiff tends to show that the wire of the city should have been strung approximately 24 inches above the wire of the power company, but that as a matter of fact it was strung only three inches above it. That this was gross negligence under the circumstances is clear, and that this negligence was the primary cause of the accident is also clear; and it is unnecessary to consider whether the city is liable only in a case where the evidence shows want of ordinary care or some higher degree of care, the evidence disclosing the fact that practically no care was taken.

2. On behalf of the defendant power company it is contended that there is no evidence tending to show that it or its agents had any knowledge of the dangerous manner in which the city’s wires were strung, and so far as actual knowledge by this particular defendant is concerned, it must be admitted that the proof is not strong. The allegation of the complaint that defendant “well knew” the defective and dangerous manner in which the city strung and maintained its wire, and negligently permitted it to remain in dangerous proximity to the wires used by it, whereby the plaintiff was injured, was sufficient to admit proof of imputed as well as acquired knowledge: Thompson, Negligence (2 ed.), p. 8; Southern Ry. Co. v. Blevins, 130 Fed. 688 (66 C. C. A. 40).

3. A party is charged not only with that of which he actually takes cognizance by his senses, but with everything which he reasonably ought to know by the exercise of ordinary care and diligence. "Where the means of knowledge exist, accessible to the party and capable of communicating positive information, he is presumed to have known everything which the use of these means would have communicated to him. It is evident that had the power company by its agents made that diligent investigation of the situation which the highly dangerous agencies conducted by them required, it would readily have discovered that the city was placing its wires in such proximity to its own as to be a menace to plaintiff and its other patrons. While the negligence of the city was active and gross, and that of the power company passive, yet as to the plaintiff it cannot be held to be innocent of all negligence. It may be possible, and even probable, that if this were an action between these defendants to determine the matter of contribution after payment of plaintiff’s damages, the company might recover any sum it had been compelled to pay on account of the city’s primary negligence; but we are not called upon in this action to adjust the relative liability of the defendants as between each other, and, the active negligence of one and the passive negligence of the other having both contributed to the injury of plaintiff, both, as to her, must be held liable.

Upon the whole case we are of opinion that'the judgment was such as should have been rendered, and it is therefore affirmed.

Affirmed.

Mr. Justice Eakin, Mr. Justice Bean and Mr. Justice McNary concur.