35 Wash. 295 | Wash. | 1904
This case was once before in this court, and the opinion upon the former appeal will be found reported in 32 Wash. 319, 73 Pac. 385. For a statement of the issues and facts, we refer to that opinion without repetition here. At the first trial, when the evidence of both parties bad all been introduced, the defendant moved
Many alleged errors are assigned relating to the instructions given by the court and to the refusal to give certain requested instructions. In argument appellant groups what it claims to be the principles involved in its assignments of error under the following general statement:
“Appellant contends that whether proper appliances for moving the tank had been furnished by the master was a question for the jury; whether the work of moving the tank Was an ordinary detail of the work of the crew was a question for the jury; and that it was for the jury to say whether it was the duty of the hook tender to select, from those on hand, the appliance to be used in attaching the line to the tank, or whether such selection was a part of the duty of the rigging slinger, as an incident to his duty to use and attach the appliance. By the instructions, all of these questions were taken from the jury.”
The different assignments relate to segregated parts of the instructions. It is our duty to examine the instructions as a whole and determine whether, when construed together, they fairly state the law applicable to the case. Referring to the first proposition included in the above statement of counsel — that is to say, that it was a question for the jury whether proper appliances had been furnished by the master — the court did specifically state to the jury, that one of respondent’s allegations was that appellant had neglected
The next criticism as to the instructions, suggested by counsel’s statement, is that it was a question for the jury whether the work of moving the tank was an ordinary detail of the work of the crew, it being contended that, if it was such, then the duty of the master did not extend to the supervision of details such as the selection of appliances, and that injuries arising from such circumstances should be held to be due to the neglect of a fellow-servant, and not of the master. We said of the circumstances of this case, when it was here before, as follows:
“We think the circumstances were such that it ought not to be said that the selection of appliances could properly be left to the judgment of a fellow-servant, but that such duty properly rested with the master, acting through a directing mind supposed to be skilled from experience in such matters.”
It will be remembered that the station of respondent, at the location of the donkey engine, was such that his safety depended upon the security of the appliances used to connect with the heavy tank. He was at a distance from the tank, and his duty called him to remain at his post ready to control his engine, in accordance with signals given him. He had not the opportunity to inspect the appliances used unless he left his post for that purpose, and such was not
Counsel’s next suggestion of error is that the court should have left it to the jury to say whether it was the duty of the hook tender to select, from appliances on hand, the one to be used, or whether such selection was a part of the duty of the rigging slinger, as an incident to his duty to attach the appliance. This contention also seeks to classify the rigging slinger as a fellow-servant in charge of the detail of selection, with the master relieved from any share in the duty. The facts in evidence were in all material respects the same as were before this court on the former appeal. We then declared the relations of the hook tender to the crew of men, and the duties he admittedly discharged to be such as made him a vice-principal, for the reason that it was his duty to direct the men to determine what appliances should be used, and the method of adjusting them. Such being the case then, as we held before, the duties discharged by the rigging slinger pertaining to the selection and adjustment of appliances were delegated duties, and passed to him from the hook tender, the master’s primary representative.
Appellant next urges that the verdict was excessive. The amount returned was $6,000. Eespondent’s injury consisted of a fracture of the ulna of the forearm and a dislocation of the head of the radius. The turning motion of the forearm was somewhat limited by the injury, although not destroyed, and respondent is also unable to bend the arm at the elbow to the full extent. The injury was severe, and the condition resulting therefrom undoubtedly entails much inconvenience to the respondent, but the arm is still useful for many purposes. Eespondent himself testified that, during the time intervening between the two trials of this case, he was a part of the time engaged in cutting wood. He also said he was able to earn about $700 per year before the accident, and that, for about five weeks prior to the last trial, he had been earning more than $2 per day — $2 net-after paying car fare. It would thus appear from his testimony that his present earning capacity is not greatly less than it was before the accident. He has, however, a crippled arm, which he must carry through life, and, at best, either his earning power is in some degree impaired, or he must undergo great inconvenience, with the possibility of increased impairment with advancing years. Under such circumstances, the jury having determined other questions in his favor, he is entitled to recover a substantial amount,
“The court finds: That the verdict of the jury was excessive, unreasonable, and exceeded in amount the damages sustained by the plaintiff, and that the amount of said verdict should not in any event exceed the sum of four thousand dollars ($4,000) ; but that this court has no power, to reduce said verdict without granting a new trial; and that with the findings heretofore made in this order, the supreme court can pass upon the question of the excessiveness of said verdict without prejudice to the rights of the defendant, by reason of the refusal of this court to grant a new trial.”
We think it was within the power of the trial court to have required respondent to remit the excessive amount or submit to a new trial. But the court declined to do so, seemingly under the belief that it had not such power. It is therefore for this court to determine whether it will confirm the court’s finding, as made in its said order concerning the excessive amount of the verdict, or whether it is excessive in any amount. Taking into consideration the evidence as above discussed, together with the fact that the trial court heard the witnesses testify, and more particularly observed the nature of respondent’s injury, we shall adopt the views of that court as to- the excessive amount.
The judgment is approved in all particulars except as to amount. But, as entered, it is reversed, and the cause remanded with instructions to the lower court that, within thirty days from the time the remittitur is filed in that court, it shall, in the alternative, require respondent to file a remittance of $2,000 from the amount of the verdict, or submit to a new trial. In the event such remittance shall be filed within the specified time, judgment shall then be
Fullerton, C. J., and Anders and Mount, JJ., concur.