122 P. 89 | Wyo. | 1912
Carl Westman, defendant in error, brought this action against The Acme Cement Plaster Company, a corporation, ^plaintiff in error, to recover damages for a personal injury alleged to have been sustained by reason of the negligence of .said company. The case was tried to a jury which returned a verdict in favor of Westman and against the company for ',$11,900. A motion for a new trial was denied and judgment ■entered on the verdict. The company brings error.
For convenience the defendant in error will be referred to as plaintiff, and plaintiff in error as defendant.
The allegations of negligence contained in plaintiff’s second amended petition, upon which the case was tried, are as follows: “That on the 5th day of December, A. D. 1908, said plaintiff while in the service of said defendant, for hire, at its mills and works at and near said city of Laramie, and while in the discharge of his regular duties as fireman,
It appears by the evidence that the coal-bin and the place where plaintiff worked were in the basement or lower story of defendant’s mill, the bin being nine or ten feet wide and situated on the west side of the basement. The east side of the bin was constructed by placing planks against a row of posts which were nine or ten by eleven inches in size, eight or nine feet in length and about nine or ten feet apart. These posts rested on cement or stone bases at the bottom of the-bin and supported a main stringer of the building above, each post having a cap three or four feet in length on its top, upon which the stringer rested. East of the bin there was a
It is contended by counsel for defendant that there is no allegation of negligent construction of the bin contained in plaintiff’s petition. But we think, liberally construed, it does charge that it was negligently constructed in that the posts were not secured in "any manner sufficiently to withstand the pressure of the coal against them. The evidence shows beyond dispute that the posts were not fastened or secured by nails, screws or bolts;. but were held in place by the weight which rested upon them, and that this had been sufficient for that purpose from the time the building had been constructed or so used — four or five years — up to the time of the happening of the accident. It was therefore an important issue of fact to be submitted to the jury upon proper instructions whether or not such construction of the bin was negligent. The defendant was not required to furnish an absolutely safe place for plaintiff to work in, or to secure the posts in any particular manner. Its duty was to exercise such care in the construction of the bin, and such diligence in maintaining it, as to afford a reasonably safe place for the purpose for which it was used. The court, over the objection'of defendant instructed the jury as follows :
“Instruction No. n. If the jury find and believe from the evidence that the defendant company and its officers knew or bad reason to know the peril and danger to which the plain
The court also gave the following instruction over the objection of the defendant: “Instruction No. 12. The defendant company was bound to use reasonable care to provide a reasonably safe coal-bin near which plaintiff worked, and if you find from the evidence, that said coal-bin was under the management of said defendant company or its servants and that the same burst and collapsed owing to the want of proper care on the part of said defendant company and injured the plaintiff and such falling of the coal bin was of
In Spees v. Boggs, 198 Pa. St. 112, 47 Atl. 875, 52 L. R. A. 933, 82 Am. St. Rep. 792, the court said: “Except in the .case of a carrier, the rule is uniform that where recovery is sought on the ground of negligence of the defendant, the burden of proof is on the plaintiff, and in an action against an employer some specific act of negligence must be shown.” See also, City of Greeley v. Foster, 32 Colo. 292, 75 Pac. 351; Price v. R. R. Co., 202 Pa. St 176, 51 Atl. 756; Case v. C. R. I. & P. Ry. Co., 64 Ia. 762, 21 N. W. 30; Kuhns v. C. R. I & P. Ry Co., 70 Ia. 561, 31 N. W. 868. In the last cited case the court instructed the jury as follows: “But if .you are satisfied from the evidence that the accident in question by which plaintiff’s decedent lost his life was unusual and extraordinary, and one that in the ordinary use of railways would not happen, it is your privilege to consider the 'fact of such accident as one of the circumstances from which 3rou are to determine whether or not the road-bed 01-engine were in fact in reasonably good order and condition.” ,The court said: “It is claimed that this instruction is in accord with Tuttle v. Chicago, R. I & P. R. Co., 48 Iowa, 236. But in that case the plaintiff was a passenger, and in such case the rule is that the accident, when established, casts on the defendant the burden of showing there was no negligence on its part which contributed to the accident.- In this case the rule is different, and tire fact that there has been an accident, whether ordinary or extraordinaXy, has no tendency to prove negligence. If this is the rule, then all the plaintiff had to do was to prove the accident, and he would ,be entitled to recover unless the defendant assumed the burden of proving it was not negligent; and this it was not bound to do. If the accident can be regarded as a circumstance tending to show negligence, then the burden may be
Counsel for plaintiff contend that the giving of these instructions, if erroneous, was not prejudicial error for the-reason that in other instructions given the jury was otherwise and correctly instructed. With that contention we cannot agree. The instructions were quite lengthy, consisting-of twenty-seven paragraphs, containing inconsistent and confusing statements: While it is true that inconsistent instructions will not be held to be prejudicial and require a reversal of the judgment in a case where the appellate court can see-from the- evidence and the verdict that the jury must have-followed the correct one; the rule is otherwise where it appears that the jury may have, or probably did, follow the-erroneous one. “Ordinarily an erroneous instruction is not cured by the giving of subsequent correct instructions, necessarily inconsistent therewith, since it is impossible to tell which charge the jury followed.” (38 Cyc., 1782, and cases cited in notes.)
Over the. objection of defendant, Mr. Henderson, a witness for plaintiff, was permitted to state from a copy of the-pay rolls of the rolling mill where plaintiff worked before and after the accident, the amount plaintiff earned each month from October, 1906, to February, 1908, before he-