102 P. 937 | Cal. | 1909
Plaintiff had been employed in defendant's beet-sugar factory in Monterey County. He was assigned first to work in the press room, where his duty was to shake out of the press some sort of material after it was formed into cakes or slabs. He testified that he did not know what the cakes contained and that he did not handle them. No one told him, he said, that there was any danger in handling the substance *614 which came from the press, and he testified that he knew absolutely nothing about the caustic properties of the material composing the cakes. After working at the press for about two weeks plaintiff was ordered by Mr. Hennings, foreman of one of defendant's departments, to clear out the tubes of a mixing tank which had been used to mix syrup, water, and lime before the product of such mixture was pressed into cakes or slabs. He was not informed by Mr. Hennings, or by any of the defendant's agents, of any dangers incident to his new employment and he did not know nor was he informed that he was working in a tank in which there was a caustic solution containing lime. He was annoyed while working in the tank by the sifting of lime from a bolter above his head and was advised by Mr. Hennings to wear a handkerchief around his neck and cloths around his wrists. He was furnished with goggles and instructed to wear them. His particular work consisted in boring through the hardened substance which had accumulated within the tubes in the mixing tank, and thus cleaning the tubes so that they might be used again for their intended part in the process of mixing. There was some liquid in the tubes and at the bottom of the tank. After the plaintiff had been employed at this task for two or three days, and when he was about to pull the augur out of one of the tubes, after boring through the hardened substance, some of the liquid from the tube, impelled either by an explosion or by some other force, was blown or splashed into one of his eyes. As a result he lost the sight of the injured eye. Judgment for five thousand dollars damages was given in behalf of plaintiff. From this and from the order denying defendant's motion for a new trial, defendant appeals.
Appellant's first contention relates to the denial of its motion for new trial. When that motion came on for hearing in the superior court, all of the parties being present, the said motion was submitted without argument and was taken under advisement by the court. Nearly a month later the court denied the motion, reciting in the order of denial that "no oral statement whatsoever was made to the court on the grounds or particular points upon which said motion should be or was based, and that the court's attention was not called to any instrument or document on file in said case as containing grounds upon which to base said motion, and that the only action taken by the *615 attorneys for the defendant in said matter upon the hearing of said motion being to state to the court that the same was submitted without argument."
The reasons expressed in the above quotation were given by the court as the only bases for the denial of the motion. Appellant's bill of exceptions contained a copy of the notice of intention to move for a new trial, and there was also a request for a new trial contained in the bill of exceptions itself. Under these circumstances was the court justified in refusing to consider and determine the motion for a new trial upon its merits? An examination of the bill reveals the fact that it contains a very full statement and specification of the asserted insufficiency of the evidence to justify the verdict, and that it also directs the court's special attention to the alleged excessive award of damages. The grounds for the motion for new trial sufficiently appear in the bill of exceptions from the specifications therein contained to enable the court intelligently to pass upon the motion. It is true that no oral reference was made to the bill of exceptions, but it was on file and had been settled by the court and contained a copy of the notice of motion specifying in full the grounds upon which the motion was based and the statement that the motion would be founded, in part, on the settled bill. Section
Respondent's attorneys have presented an elaborate argument in which this court is urged to omit from consideration the question of the alleged insufficiency of the evidence upon the ground that the appeal from the judgment was not taken in time to permit such review. The notice of appeal from the judgment was filed 57 days after the rendition of the judgment and 50 days after section 939 of the Code of Civil Procedure had become effective as amended by substituting the word "entry" for the word "rendition." There is no saving clause in the amendment of 1907. Respondent's counsel contend that the former statute was repealed and at the time of the filing of the notice of appeal there was no statute upon the subject applicable to this case; in other words, that appellant could only take advantage of the old section 939 of the Code of Civil *617
Procedure, by perfecting its appeal between the time of the rendition of judgment and the date upon which the new section 939 of the Code of Civil Procedure, went into effect. It is conceded that this theory is in conflict with that announced in Pignaz v.Burnett,
There is evidence which justified the conclusion that Mr. Hennings was a vice-principal of the defendant corporation. Mr. Hennings had charge of that part of the factory known as the "Steffens Plant" or department. He gave orders to Mr. Clathworthy, plaintiff's immediate superior, and directed the latter to furnish men for work in the tanks. The manager of a department is a vice-principal. Mr. Hennings prepared the place in which plaintiff was to work and gave him the implements with which to accomplish his task. In this he was clearly a vice-principal representing the corporate defendant. (Nixon v.Selby Smelting Co.,
The work being performed by plaintiff at the time of his injury was, in its very nature, of a temporary character and was not done by him in the course of his usual and ordinary employment. He was taken from his place at the press by Mr. Hennings and, as he testified, put at work in the tank without any warning with reference to the dangers involved. Defendant knew of the highly caustic character of the solution in the tank. Of this, plaintiff testified he was ignorant and he did not even know, he said, that the cakes handled by him at the press were composed of material taken from the mixing tank. The tank was in a different room from that in which plaintiff's usual work was done. He could not, therefore, be presumed to know the manner in which the mixing tank was operated nor the purpose for which it was used. He had never been in the tank until Mr. Hennings sent him there, as the tubes had never been clogged before. Under these circumstances we cannot say that, as matter of law, he assumed the risks incident to his temporary occupation. Whether he did have knowledge of such special danger or not was a question of fact for the jury.(Daubert v. Western Meat Co.,
Appellant invokes the rule announced in Bone v. Ophir SilverMin. Co.,
Certain instructions are attacked by appellant. Instruction numbered 13 is as follows: —
"If you believe from the preponderance of the evidence in this case that the sight of one of plaintiff's eyes was injured or destroyed on the eighth day of October, 1905, while plaintiff was in the employ of the defendant and in the discharge of his duties under such employment, and while in the exercise of due care and caution on his part, and that the same was so injured or destroyed by any substance upon which plaintiff *619 was required by the defendant, or those acting under its authority, to perform labor in the course of his said employment, and it further appears to your satisfaction that such injuries were caused by the caustic or corrosive qualities of such substance, if it had such qualities, and that such qualities were known to the defendant, or could have become known to it by the use and exercise of ordinary care, and that said defendant failed and neglected to warn or caution plaintiff of such qualities, and that the same were not known to the plaintiff or obvious to him, and that the neglect of the defendant to warn or caution plaintiff thereof was the proximate cause of such injuries, then I instruct you that you must render a verdict for the plaintiff."
Appellant's first criticism of this instruction calls attention to the omission of all reference to the danger of explosion. This has been answered, we think, by the discussion in a preceding paragraph. Supposed error in the instruction is next predicated upon the omission of the qualification that the danger from the caustic properties of the substance in the tank was not included in the ordinary risks of the employment. There was no defense based upon the claim that the injuries were due to ordinary risks of employment. Such defense should be specially pleaded. (13 Ency. of Plead. and Prac., p. 914.) Besides, all of the evidence on the subject tended to show that the employment was of a temporary character and there was no contradiction of this point. If such qualification had been necessary, however, the jury was given, in later instructions, the rules with reference to the assumption of usual risks of one's ordinary employment.
The next criticism of this instruction is that it omits the element that defendant knew, or in the exercise of reasonable care should have known, of the plaintiff's alleged ignorance. Such proviso was unnecessary for several reasons: 1. The work being temporary, perilous, and outside of the ordinary occupation of Boin, it was defendant's duty to warn him, whether or not his ignorance was known to defendant; 2. The undisputed facts show that plaintiff had no opportunity of learning of the contents of the tank before entering it; and 3. Conceding that the omission of this qualification was erroneous, the jurors were subsequently instructed fully on this subject. There are other criticisms of this instruction, but they are either without *620 merit or are met by subsequent declarations, in the charge, of correct rules of law for the guidance of the jury.
There are numerous other specifications of alleged error in the charge to the jury and the court's refusal to give certain proposed instructions. We have carefully examined all these matters and do not find any substantial error which would justify a reversal of this case.
It follows that the judgment and order should be sustained and it is so ordered.
Henshaw, J., and Lorigan, J., concurred.
Hearing in Bank denied.