Likewise in the case of Wabash Screen Door Co. v. Black, 126 Fed. 721, 61 C. C. A. 639, it is said:

"Now the company insists that the proof fails to show that the pulley was defective, but, if it does, it fails to show the specific defect which caused it to burst; and, if it does this, still it does not show that Whitford (deceased) was struck by one of the flying pieces, for no one saw him hit; that for aught that appears in the record he might have been hurt by stumbling and falling into the pulley while approaching it, or by slipping and falling between the belt and pulley while oiling the idler above, in either of which events his skull might have been fractured on one side and his scalp bruised on the other. . . . Doubtless a jury ought not tc be permitted to speculate in the sense of guess between causes when no reasonable explanation of the injury can be found in the testimony (citing Patton v. Texas Pac. Ry. Co., 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361; Duntley v. Inman & Co., 42 Ore. 334, 70 Pac. 529, 59 L. R. A. 785; I. C. R. R. Co. v. Cathey, 70 Miss. 332, 12 South. 253). But, in the absence of direct testimony, the simple suggestion of theories by the defense does not reduce the jury to mere speculation and disqualify it from determining the cause of the injury complained of. The theories suggested may be forced and fanciful, finding no reasonable foundation in the facts proved. They may be explanations which do not explain, which the common sense of the jury, when applied to the testimony, would instantly reject."

So in this case the theory advanced by defendant that the falling of the truss might have been due to some latent defect in the clamp by which the end of the cable was fastened is not supported by any evidence in the case, but is mere conjecture only.

2

We now come to the assignment of error involving the question of whether Fowler, the deceased, under the evidence when considered in the light most favorable to the plaintiff, was as a matter of law guilty of contributory negligence. The evidence bearing upon this phase of the case discloses about the following state of facts: The truss was being put in place under the direction and supervision of Snyder, the defendant's foreman, who was present giving directions to Fowler and the other employees who were operating the derrick at the time the accident occurred. George Roberts, an experienced structural iron worker, had hold of a tag or guy line that was fastened to the end of the truss, which, as hereinbefore

stated was suspended about seventeen or eighteen feet above the ground. The use of the tag or guy line was to steer and guide the truss as it was being raised and placed in position.

Regarding the situation and as to what was said and done at the time of and immediately preceding the accident, Snyder, one of defendant's witnesses, testified in part as follows: "The tag line we had was too short, and Roberts had hold of it, and the truss would swing over him once in a while. I told Fowler to take a piece of line over, and tell Roberts to bend it on so he could stay out from under that thing. He took the rope and handed it to Roberts, and Roberts took a step over on the truss further to tie or bend on the line, and Fowler followed him around, stepping over the truss that was lying on the ground and crossed over on the further side of it. He must have been partially under the suspended truss which dropped." Snyder further testified that he had "cautioned the men regularly about going under the heavy weights that were being hoisted,” and had "told Fowler before about it." William Tame, an employee of defendant who was assisting in putting the truss in place, testified: "I could see George (Roberts) from where I was, and I heard Snyder tell Ira Fowler to get that line and take it over to George, and saw him do it. The truss fell and struck him on the head. I saw him as he fell. He and Roberts were so close together that they could touch one another." He further testified that "the rule of iron workers is to keep from under all bodies being hoisted." Roberts was called as a witness, and testified in part as follows: "I was standing under the boom like, and pulling back toward the mast, and helped to move the car along that the truss was hanging to. The rope was too short, and it was necessary to attach something more and lengthen it. Ira got the rope and came out with it to where I was standing. In order to tie the line on, we had to go out where my line came down, so I could reach it in order to tie it. Ira came out to assist me in tying the rope, and while he was there assisting me the truss fell and I jumped out of the way. I barely escaped."

a piece of rope

Fowler was di

True, there is

It thus appears that Fowler, who was not a structural iron worker, and who had had but a few days' experience as a common laborer at this kind of work, was in this situation: He had been informed by Snyder, defendant's foreman, of the danger of going under the weights as they were being raised by means of the derrick. Roberts, who was an experienced structural iron worker, was standing in the danger zone of the suspended truss holding to a tag or guy rope which was too short for the use that was being made of it. It therefore became necessary for some person to go to where Roberts was standing with to attach to the rope he was holding. rected by Snyder to perform this service. some evidence tending to show that Fowler in taking the rope to Roberts was not necessarily required to go within. the danger zone of the truss, but the great preponderance of the evidence is to the contrary. On this point, Snyder, defendant's principal witness, testified on crossexamination as follows: "Q. Now, therefore, when you saw that Roberts was underneath the truss you sent Ira to get the rope and to take it to George Roberts, it would be necessary for him to go where George was, wouldn't it? A. Yes, sir. Q. To take it over? A. Not necessarily under the truss. Q. I understand Roberts was under the truss? A. I will admit it was a dangerous place for him to go. Q. So that George Roberts was within the danger zone, was he not? A. Yes. Q. And it was necessary for Ira Fowler to go where George was to take the rope to him? A. Yes. Q. That is, within the danger

zone? A. Yes."

The general rule is that where, as in this case, a servant is injured while performing some act in obedience to the orders of his master, he is not chargeable with 3 contributory negligence, unless the act commanded involves danger so obvious and imminent that no reasonably prudent person in his situation and with his knowledge of the

danger would undertake it. This rule is tersely stated and well illustrated in 26 Cyc. 1221, in the following language:

"A servant acting under the commands or threats of his master does not assume the risk incident to the act commanded, unless the danger incurred is fully appreciated and is such that no person of ordinary prudence would consent to encounter it; and the mere fact that the servant knows there is some danger will not defeat his right to recover if in obeying he has acted with ordinary care under the circumstances."

In 1 Labatt, section 439, the author says:

"If a danger is not so absolute and imminent that injury must almost necessarily result from obedience to an order, and the servant obeys, the master will not afterwards be allowed to defend himself on the ground that the servant ought not to have obeyed the order." And again: "It does not follow that because disobedience to the order would be justifiable the servant was guilty of negligence in obeying it."

(Shearman & Redfield, Neg. [5th Ed.], section 186; 20 Am. & Eng. Ency. L. [2d Ed.], 147; Harrison v. Railway Co., 7 Utah, 523, 27 Pac. 728.) Tested by the rule as declared by these authorities, and many others that could be cited, we are clearly of the opinion that the facts and circumstances of this case, as disclosed by the record, would not justify a court in directing a verdict for the defendant. Under the circumstances all that the defendant could properly demand was that the question of contributory negligence be submitted to the jury under proper instructions from the court. And, the court having done this, the defendant is not in a position to complain.

The judgment is affirmed, with costs to respondent.

FRICK, C. J., and STRAUP, J., concur.

STEWART v. OREGON SHORT LINE RAILROAD COMPANY.

No. 2243. Decided July 21, 1911 (117 Pac. 465).

APPEAL AND ERROR-PRESENTATION OF GROUNDS OF REVIEW-COURT BELOW-EXCEPTIONS-NONSUIT-NECESSITY. In the absence of an actual exception, the sustaining of a motion for a nonsuit cannot be reviewed, as Comp. Laws 1907, section 3283, providing that the verdict of the jury, the final decision, an interlocutory order or decision finally determining the rights of the parties, an order or decision from which an appeal may be taken, an order sustaining or overruling a demurrer, an order allowing or refusing to allow an amendment or striking out a pleading, or refusing a continuance, an order made upon an ex parte application, or in the absence of a party, are deemed to be excepted to, does not supply the omission of an actual exception. (Page 376.)

APPEAL from District Court, Second District; Hon. J. A. Howell, Judge.

Action by Anna Stewart against the Oregon Short Line Railroad Company.

Judgment for defendant. Plaintiff appeals.

AFFIRMED.

J. D. Skeen and W. R. Skeen for appellant.

P. L. Williams, Geo. H. Smith and Lrank K. Nebeker for respondent.

STRAUP, J.

This was an action brought by appellant to recover damages for alleged personal injuries. Upon the evidence adduced by both parties the court, on respondent's motion, directed a verdict in its favor. No exception was taken or reserved to the ruling. The appellant seeks to have it reviewed on the theory that under the statute, such a ruling is deemed excepted to.