The opinion
Denied September 7, 1915.
On Petition for Rehearing.
( 151 Pac. 471 .)
Mr. John D. Goss and Mr. J. C. Kendall, for the motion.
Mr. Isham N. Smith, Mr. William T. Stoll and Messrs. Brenn & Hyde, contra.
Opinion by
Mr. Chief Justice Moore.
It is contended in a petition for a rehearing that a reversal of the judgment herein was erroneously based on the giving of an instruction on the question of contributory negligence, when the bill of exceptions does not purport to contain any of the testimony, and for that reason it cannot be said from *283 an inspection of the transcript that the plaintiff’s right of recovery is founded on the Employers’ Liability Act, under which statute alone contributory negligence is not a defense: Gen. Laws Or. 1911, c. 3, § 6; Schaedler v. Columbia Contract Co., 67 Or. 112 ( 135 Pac. 536 ).
5. When a bill of exceptions does not purport to contain the evidence, and fails to state that no testimony was offered on a particular issue, it will be presumed. from instructions given in respect to facts disputed by the pleadings, that such parts of the charge were predicated on testimony that had been received: Baker County v. Huntington, 48 Or. 593 ( 87 Pac. 1036 , 89 Pac. 144 ). In the charge it was said:
“It is the duty of the master operating a mine to use all appliances readily obtainable * * for the prevention of accidents arising from the accumulation of gases or other explosives, and failure to observe that duty by the master constitutes negligence on his part.”
The court further instructed as follows:
“It is incumbent upon the defendant to make out the better case as to the affirmative defenses, providing the plaintiff has first of all established by preponderance of the evidence that he received his injury by reason of the carelessness or negligence of the defendant in the particulars, or some of the particulars, as described in the complaint.”
From these excerpts and others of like import the court conceded that testimony had been given by the plaintiff tending to show that he was hurt by an explosion of gas in the defendant’s coal mine, as alleged in the complaint. The facts thus appearing from an inspection of the bill of exceptions, as evidenced by the language last quoted, prove that the cause of action arose under the statute referred to, and not under the principles of the common law.
*284 6. By tlie act mentioned, though contributory negligence is not a bar to a recovery of damages by an employee for an injury resulting from the alleged carelessness of the master, the measure of the loss occasioned by the hurt is apportioned ratably between the parties according to their respective want of ordinary care: Filkins v. Portland Lumber Co., 71 Or. 249 ( 142 Pac. 578 ).
The former opinion is therefore adhered to.
On Rehearing Former Opinion Approved.