255 F. 841 | 8th Cir. | 1919
Oscar Shriver, who, since the. granting of the writ of error, has died, the administrator of his estate having been substituted as defendant in error, recovered a judgment in the court below against the plaintiff in error for personal injuries, alleged to have been sustained by him by reason of the negligence of plaintiff in error. The parties will be referred to as they appeared in the trial court.
The complaint alleged that the defendant was engaged on Eebruary 24, 1917, and for some time prior thereto, in manufacturing, keeping and storing nitroglycerin and other high and powerful explosives in a factory located about one-half mile west of what is known as the Torpedo Switch; that the plaintiff was employed and engaged on said February 24, 1917, in working for the Paragon Drilling Company and A. C. Siekman in the drilling of an oil or gas well near the said plant of the defendant, as a tool dresser; that the defendant <was guilty of carelessness and neglect in the operation and maintenance of said plant. The negligence charged was that it negligently and carelessly removed fire, hot ashes, and coals from its boilers, and placed the same
The answer, in addition to a general denial, pleaded contributory negligence, by alleging that the plaintiff was at a safe distance from said plant at the time of the ignition and the explosions, but voluntarily, as a matter of curiosity, approached very close to the acid shed of the defendant, and but for that he would not have been injured. There was a reply denying the charge of contributory negligence.
The assignment of errors complains of the refusal of the court to direct a verdict for the defendant, the refusal to give certain instructions asked in behalf of the defendant, and also that the court erred in its charge as to the burden of proof to sustain the plea of contributory negligence.
Did the court err in refusing to direct a verdict for the defendant? It is not seriously contended by counsel for plaintiff in error that the evidence did not warrant a finding that the fire which caused the explosion was the result of the defendant’s negligence, as there was substantial evidence of causal negligence in that the defendant permitted the throwing of hot ashes against the wooden side of the boiler house, and that this caused the fire, and the explosions from which the plaintiff received the injuries complained of.
It is only when the evidence is of such a nature that all reasonable men, upon the facts shown, would say that the plaintiff was guilty of negligence that a court is justified to direct a v'erdict against him.
The court on the issue of contributory negligence charged the jury:
“That if the plaintiff went ever towards his working place, the place where he usually worked, and used such ordinary care as an ordinarily prudent man would exercise, and had such regard for his own safety as an ordinarily prudent man would have, with the knowledge of all of the facts and circumstances that the evidence shows you he did have knowledge of, thou he cannot be said to have himself either caused or contributed to his injury. But, on the other hand, if the defendant shows you by a preponderance of the evidence that there was a condition existing there which caused the plaintiff to know and appreciate as a man of ordinary prudence that there was a danger in going there, a danger to his person; that there was a liability of some such thing happening as did actually happen, and that the plaintiff went there in a spirit — or that the plaintiff went there in a spirit of imprudence, lack of ordinary care, willing to take a risk, knowing that there was a risk and still willing to hazzard it, then the plaintiff cannot recover, if a preponderance of the evidence shows you that the plaintiff went there knowing and realizing that there was a danger, but willing to take that risk and danger, then lie cannot recover for the happening of something which he was fairly apprised of and appreciated, if that was Ms situation.”
The court committed no error in the trial of the cause, and its judgment is affirmed.