The opinion
Decided April 27, 1909.
On Petition for Rehearing.
[ 101 Pac. 204 .]
Mr. Justice King
delivered the opinion of the court.
. 18. If is first urged in support of defendant’s .petition for rehearing that prejudicial error was occasionéd *513 by the admitting in rebuttal of the testimony offered by plaintiff with reference to and in the admission of her shoe in evidence. There can be no doubt that this was a matter resting within the sound discretion of the court. The court’s discretion in such matters is a large one, an abuse of which will not be presumed: 9 Ene. Ev. 234. After a careful examination of the record, we were fully convinced that this was a matter concerning which no abuse of discretion was shown and so held; and, after a re-examination thereof, we are still of that opinion, and think there is little room for discussion upon the subject. Sections 132, 842, B. & C. Comp., expressly give to the court this discretionary power.
19. The manner in which the court may satisfy itself as to the propriety of permitting evidence to be introduced out of its order, in the absence of a statute to the contrary, is also a matter for its determination under the circumstances as they arise, which, like the admission of the testimony out of the usual order, is subject to review for abuse of discretion only. State v. Hunsaker, 16 Or. 497 ( 19 Pac. 605 ), to which our attention is directed, was a criminal case, and was reversed because, in the opinion of the appellate court, the trial court abused its discretion in the admission of the evidence there mentioned, and is not analogous to the case under consideration. It serves, however, to illustrate that a reversal may, and should, occur where there has been an abuse of the privilege there given the court, but not that a reversal must in all cases be granted where testimony is admitted in that manner. To so hold would be to ignore the plain provisions of the statute on the subject. The case of Davis v. Emmons, 32 Or. 389 ( 51 Pac. 652 ), is more in point. There it was contended that the court erred in permitting plain *514 tiff to reopen the case after defendant had rested, and to call a witness to prove the original cause of action, in considering which the court at page 395 of 32 Or. ( 51 Pac. 653 ), of the opinion, states the rule thus: “The order of proof at the trial of a cause is a matter regulated by the sound discretion of the trial court (citing the Code), and, like all other questions of that character, will not be reviewed except for an abuse thereof, which is not apparent in the case at bar.” For other cases discussing, applying, and adopting this principle, see 9 Enc. Ev. 232, note 1; Bennett v. Stephens, 8 Or. 444 ; Osmun v. Winters, 30 Or. 177 ( 46 Pac. 780 ); Jones v. Peterson, 44 Or. 161 ( 74 Pac. 661 ); State v. Remington, 50 Or. 99 ( 91 Pac. 473 ); First Nat. Bank v. McCullough, 50 Or. 509 ( 93 Pac. 366 : 17 L. R. A. (N. S.), 1105).
20. It is also zealously insisted that we are at fault in holding there was no prejudicial error in the giving of the instruction relative to the “shifting of the burden of proof,” etc. In the interest of brevity, as well as for the reason that we deemed the question clearly settled by previous decisions of this court, including the case of Boyd v. Portland Elec. Co. 41 Or. 336 ( 68 Pac. 810 ), which we cited with approval,’ we did not enter into an extended discussion of the subject. However, since it is still maintained that the holding in the Boyd case is not in conflict with defendant’s contention here, we will further advert thereto. The construction complained of was as follows:
“In cases of this character, the law provides that where it is shown that an accident is caused by the breaking or sagging of a wire, or by something going wrong in the 'business of a defendant engaged, as this defendant was, in propelling cars by electricity by means of overhead wires, and it is further shown that a hanger which broke and a wire which sagged and which caused an accident were the property of and in *515 the custody and control of the defendant, the law presumes then, or raises the presumption, that the defendant was negligent and that the accident was caused by its negligence. And when this is shown, provided there was no contributory negligence shown on the part of the plaintiff, the burden of proof is shifted to the defendant to show to your minds by a preponderance of evidence that it, the defendant, was not at fault, and that the accident happened without any negligence or want of ordinary care upon its part.”
The instruction quoted, with the exception of a slight variation of a few words to fit the case at hand, is the same as in the Boyd case. Indeed, it anpears to have been taken from the instruction there given. The italicized part is the portion especially challenged, with respect to which the language in both cases is identical, and the similarity of the facts presented is ample to make the rules of law governing the evidence adduced applicable in both cases. But it is argued that the question here presented was not involved nor considered by the court in that case, in reference to which it is asserted that nowhere in the opinion can it be found that the point was there made or urged on appeal. The latter suggestion overlooks the fact that it is often not only unnecessary, but impracticable, to discuss minutely every point presented, or notice in the opinion each and every authority cited: Kamp v. Kamp, 59 N. Y. 212, 221 . The effect from a legal standpoint must often be determined from the conclusions announced upon questions raised, argued, and submitted. An inspection of the briefs in the Boyd case on file in this court discloses that the point alluded to was not only properly raised in the trial court, but that error was predicated thereon, constituting one of the main points presented upon which a reversal was demanded.
It is true, however, that another point was first adverted to by the court, and there treated “as defendant’s initial contention, and the one most strenuously *516 insisted upon”; but, in an examination thereof, the court considered and disposed of the other questions involved, resulting in an affirmance throughout of the action of the trial court, including therein the instruction above mentioned. However, the instruction there given, as well as the one here, was there and is here considered with reference only to the facts disclosed by the record, which in that case, as in this, were ample to justify the giving of the instruction. In the Boyd case it appeared the wire had fallen and for some time had remained hanging dangerously near the ground, while in the case under consideration defendant admitted, and, in fact, pleaded, in the- answer “that some time about two weeks prior to the 12th day of July, 1906, the said trolley wire in front of No. 209 Grand avenue, by which the defendant operated its cars as aforesaid, broke away from its fastenings, and hung and sagged down toward the street in plain sight -of every one crossing said street or walking along said street, and that said trolley .wire and the fact that it had broken away from its fastenings and was sagging down towards the street and was liable at any moment to further sag or hang down toward the street, and the fact that said trolley wire was in a defective and broken condition was for two weeks prior to July 12, 1906, apparent to all persons and to this plaintiff, and that plaintiff during said two weeks prior to July 12, 1906, saw said broken trolley wire each day, and saw and was aware of its -broken and defective condition, and the fact that it had broken away from its fastenings and was sagging down towards the street and was liable at any moment to -further sag down toward the street, * * and the fact that said wire was charged with electricity and was a dangerous thing to come in contact with, the plaintiff well knew.” The facts thus admitted were such that, without further explanation, negligence must necessarily be inferred therefrom. The *517 effect thereof was such as would afford no room among reasonable minds for a difference of opinion with respect thereto, leaving nothing for the jury to determine upon this point. Since no attempt was made to explain the cause of the sagging of the wire, and its remaining in such dangerous condition for the time stated, the court was privileged to determine whether the facts disclosed by the averments quoted constituted such negligence as to entitle that feature to be taken from the jury, and to instruct the jury accordingly (11 Enc. Pl. Pr. 131; Crossen v. Grandy, 42 Or. 282 : 70 Pac. 906 ), leaving for their determination the defense urged as to plaintiff’s contributory negligence, and the amount of damages, if any, to which she might be entitled. It has often been held that, where the uncontradicted facts disclose the negligence of the complainant to have been the proximate cause of an injury for which damages are sought, the court may so determine and take the question from the jury: Blackburn v. Southern Pac. Co. 34 Or. 215 ( 55 Pac. 225 ). In fact, instructions to that effect were requested by defendant herein, the refusal to give which was assigned as error. What reasons, then, can be urged for not permitting the same rule to be invoked in behalf of Plaintiff? None.
21. There is“ no occasion in this instance for the invoking of a distinction between a presumption of law and a presumption of fact. Whatever may be the distinction, if any, can have no application here. Under the facts conceded by defendant, not having been further explained, they were such that negligence was necessarily inferable therefrom, and in law constituted such an inference as presumes negligence, and it can make no difference, so far as the legal effect in this action is concerned, whether it be termed a presumption of law or a presumption of fact: State v. Kelly, 57 Iowa, 644 ( 11 N. W. 635 ). The defendant, as above *518 stated, admits the facts from which, in the absence of a further explanation thereof, but the one inference mentioned is deducible, and relied solely upon the alleged contributory negligence of the plaintiff as being the proximate cause of the injury, leaving that question, and the assessment of the damages, if any, for the jury’s determination. The instruction therefore was more favorable to the defendant than it had reason to expect, from which it follows that no error can be predicated thereon.
Other errors are assigned in the petition, by reason of which it is argued that a rehearing should be granted; but, after a re-examination of the points urged, including all authorities cited and relied upon in support thereof, we conclude that sufficient cause is not shown to justify re-opening the case for further argument.
The petition is denied.
Affirmed: Rehearing Denied.