Hoffman v. Broadway Hazelwood , 139 Or. 519 ( 1932 )

Petition for rehearing denied May 24, 1932 ON PETITION FOR REHEARING (11 P.2d 814) It is urged that the judgment in this case should not have been reversed because of instructions given concerning the applicability of the Employers' Liability Act, since no exceptions were taken to such instructions and no assignment of error was based thereon. An examination of the bill of exceptions discloses that the trial court allowed an exception to each of defendant's requested instructions which was not given. It clearly appears from such requested instructions that the same were predicated upon the proposition that the Employers' Liability Act had no application and that the case should be tried under the rules of the common law. Indeed, throughout the trial in the lower court, counsel for defendant insisted that contributory negligence and assumption of risk were complete defenses. On page 41 of appellant's brief, it is stated: "Assignment of Error III, IV, V and VI submitted to the jury the question of the applicability of the Employers' Liability Act. We have already referred to this matter in the Assignment of Error predicated upon the denial of motion for nonsuit and directed verdict. If the Employers' Liability Act did not apply, then these instructions would be error."

In the light of this record, we see no merit in the contention that this court erred in going outside the record to review the instructions given concerning the applicability of the Employers' Liability Act.

The petition for rehearing is denied.

BEAN, C.J., BROWN and CAMPBELL, JJ., concur.