McGOWAN et al. v. LARSEN, 66 F. 910

McKENNA, Circuit Judge, after making the above statement, delivered the following' opinion: The rulings of the court in excluding testimony were correct. No inference of sufficient degree of probability could be drawn from it under the issues to make it admissible. To sustain their exception to the ruling of the court for giving the instruction contained in the fourth assignment of error* and above quoted, plaintiffs in error contend that under the laws of Oregon they were entitled to plead inconsistent defenses, and, citing Pom. Rem. & Rem.

Rights, § 722, that they could not be compelled to elect between such defenses, nor could evidence in favor of either have been excluded at the trial on account of inconsistency. “If this be true,” counsel say, “it is obvious that: the interests of the plaintiffs in error were seriously affected by the remarks of the court: in criticism of these defenses. If they were entitled to their defenses, they were entitled to them without their being weighted down by these strictures,” meaning the comments of the instruction. But this does not follow.

The defenses they might be able to malee (we assume it without deciding it), and evidence in support of them might be admissible; but after it is admitted it must receive consideration, and its character either absolutely or in relation to other evidence must be determined, that a judgment may be formed.

Inconsistent defenses — that is, when the truth of one negatives the truth of the other — cannot both be found true; and in reaching a judgment of the truth of either the court may assist the jury, if it. make no comment which the evidence will not bear, and assume no function which it is the jury’s right to exercise. The record does not contain the evidence, and we must assume that the defenses were made as stated by the court. It is manifest that only one could be true.

If there was no light out, one could not have burned' all night; and if one burned all night it could not have been extinguished' before morning by a freshet. The comment of the court, therefore, was correct, and it submitted to the jury the only proposition the jury had a right to find, to wit, the truth of one of the defenses.

Counsel urge in their brief that by the use of the word “false" in the instruction the court “made á direct accusation of perjury; of willful false statement,” — and that the jury must have received the word in such sense, and not as an equivalent for “untrue.” This is inferred because in certain statutes imposing penalties or detriments the word is so construed. The inference we do not think is justified. Besides, the context refutes the contention of counsel. We do not find any error in the instructions contained in the fifth and sixth assignments of error.

The statute requires any person owning or operating a trap to “conspicuously show at night-time between sunset and sunrise a bright white light.” It must be displayed continuously. It must be put out at sunset and maintained until sunrise. The excuses for the nonobservance of this duty, in view of the facts and the degree of care required, were properly explained. To the instruction contained in the eighth assignment of error, plaintiffs in error take in their brief a different exception to that taken -at the trial. They must be confined to the latter.

The record states the exception as follows; “To which instruction of the court the defendants, by their said counsel, duly excepted as to the court’s suggestion that the defendants removed the light next morning, probably soon after daylight; which exception the court allowed, the court saying: T said ho removed it the next morning. It does not appear when he removed it the next morning, but probably soon after daylight.’ ” That is, the exception was to two suggestions of fact:'

(1) The defendants removed the light next morning; (2) that this was done “probably soon after daylight,”- — and the improbability which the court mentioned was that between 5 minutes after 3 and “soon after daylight” the light “should have gone out,” hence it must have gone out before 5 minutes after 3, and that the captain of the La Comas was untruthful or mistaken as to the fact or time.

This reasoning counsel for plaintiffs in error does not seem to think is very strong, but it is only necessary to say that it was submitted to the jury for what it was worth; the learned judge saying: "However, my judgment is not to govern; the matter is for your determination, not mine.” We think the limits allowed to the court were not transcended, more particularly when considered in connection with the rest of the instructions given. There being no error in the record, the judgment is affirmed.