213 F. 416 | 1st Cir. | 1914
This writ of error is for review of rulings of the District Court in an action for negligence, wherein the plaintiff, Hogan, had a verdict. The previous opinion of this court may be found in 195 Fed. 494, 115 C. C. A. 404.
The chemical company, plaintiff in error, is a manufacturer of fertilizer. Its process includes the mixing of phosphate rock and sulphuric acid, and involves chemical reaction. From the mixer the material is dropped into a dqn or bin below thé mixer, and there accumulates. Subsequently a door in the den is opened, and the laborers, with picks and forks, work the material through an opening in the floor, so unit it drops into hand carts below.
Hogan, the plaintiff, while engaged in this work as a laborer, was severely burned by the material upon which he was working.
The declaration is in two counts; the first alleging:
“Said negligence consisted in ordering Mm to work in a place which, by reason of the presence of a large guantity of acid, was dangerous, and known, or should have been known, by the defendant to be dangerous; said injury was directly caused by the escape of said acid, which, coming in contact with the plaintiff’s body, burned his legs, abdomen, and back.”
The second count alleges:
“That the said defendant negligently put Mm to work in a place unsafe because of the risk <5f the collapse and fall of dangerous substances, and carelessly failed to instruct or warn him of and concerning the aforesaid dangers, or to promulgate proper rules, or to take measures to protect him from the said dangers while working in said place.”
It was not contended by the defendant that the risk of burning by acid was an ordinary risk of the business or a risk known to or assumed by the plaintiff.
If, as a matter of fact, the material was dangerous by reason of the acid that it contained, and the plaintiff was ordered to work upon the material while in such condition, he was exposed to an unusual and extraordinary risk, and the jury was justified in finding the defendant negligent.
The plaintiff testified that while he was -at work upon the pile of material in the ordinary way, and without undermining it, the stuff slipped out of the pile and covered him to the waist, that his legs went into the opening in the floor, and that the stuff was “steamy, hot, and gassy—very hot.” The plaintiff' contended that if the stuff had been in proper condition to work it would have been impossible for the material to collapse in this way.
There was a decided conflict of testimony upon the questions whether the plaintiff’s burns were caused by acid, and whether the material was in such condition as to be likely to fall even if properly handled. An examination of the testimony, however, shows that the trial judge was clearly right in denying the defendant’s requests for the direction of a verdict. There was testimony which entitled the plaintiff tq go to the jury both upon the question whether the burns were due to acid and upon the, question whether the material was in such condition as to involve the risk of collapse.
“It is not An objection, as is assumed, that he was asked a question involving a point to be decided by the jury.”
But that case did not involve the existence of a well-established state practice to the contrary.
The testimony admitted was a stenographic account of the former testimony of the witness that was in substantial agreement with his present testimony; the variations being so slight that the attempted contradiction failed. There is clearly no merit in the objection as applied to the particular facts of this case.
The plaintiff in error contends .that the general rule is subject to exception. In Griffin v. Boston, 188 Mass. 475, 74 N. E. 687, the court seems to have based the right to rehabilitate the credit of the witness upon the fact that the purpose of cross-examination was to show the witness’ testimony to be a recent fabrication created under the influence of defendant’s counsel. No such imputation is now made. It is urged that counsel in cross-examination attacked the witness on the ground of bias, by questions designed 1o support an argument that Kinney was testifying with an intent to favor the defendant, under the influence of recent favors received since the time of the accident. Upon cross-examination it appeared that Kinney was in the employment of the defendant, and that his employment at the time of the accident was working in the dens and had been changed to that of being a janitor in the boarding house. The witness stated that the job was no better, with no more pay, and that he would as soon have one job as the other.
The cross-examination was of the familiar character in examining an employé of a party. There was the usual imputation of bias arising from employment, with a further suggestion that the witness'had received recent favors in a change of employment, although there was no proof that this change amounted to any substantial benefit.
It was further brought out that the witness Kinney had refused to talk with the plaintiff’s lawyer.
All of this falls short of establishing improper influence or undue pressure, or recent fabrication. In view of the ordinary method of cross-examination, there would be left but little of the general rule excluding previous statements if an exception were established by ordinary cross-examination as to bias arising from such circumstances as appeared in the present case.
“15. The plaintiff, while engaged in shoveling, or working, on a pile oí fertilizer, assumed the risk of the fall of the upper portion of such pile when, the lower portion thereof was dug into, or undermined.”
“providing you find that the defendant was acting as a reasonably prudent man in giving these instructions.”
We think this was a proper modification, or at least a modification which, fairly interpreted, introduced the element which was lacking in the request; that is, that the instruction to go to work was given when the material was in the ordinary condition.
A like modification was given to the nineteenth and twentieth requests, and apparently for the same reason. Reading the instructions which are excepted to in connection with the context and with the whole of the charge, however, we are of the opinion that the jury were fully and clearly instructed, and that no prejudicial error could have arisen from these modifications.
The inconsistency upon which the defendant relies relates only to the plaintiff’s knowledge of the temperature of the material upon which he was working. It is not quite clear whether the defendant fairly came up to the point of contending that it was usual to set the men to work when the material was so hot as to involve serious burning otherwise than by acid. From the testimony of Hogan and of Coleman, a former superintendent, it might have been found that under ordinary conditions of work'the heat of the material was but moderate.
Reading the extracts from the testimony at the two trials, we find that at the last trial, although Hogan says at one time, in answer to cross-questions, that the material was not hot, at other times he says it was not very bad, not very hot, and that it must be a little hot; whereas at the first trial he testified that it was pretty hot. Clearly it would have been error to direct a verdict on the ground of such inconsistency.
The case of Smith v. Boston Elevated Ry. Co. has no proper application when there are merely slight discrepancies in the testimony at two trials, not amounting to the taking of inconsistent and contrary positions as to a cause of action. The court properly instructed the jury that they might consider discrepancies as bearing upon the-credit
The charge as a whole was sufficiently favorable to the defendant, and we find no substantial error either in the charge or in the rulings upon testimony.
The judgment of the District Court is affirmed, and the defendant in error recovers costs in this court.