Columbia & Puget Sound Railroad v. Hawthorne, 3 Wash. Terr. 353

Columbia & Puget Sound Railroad v. Hawthorne

3 Wash. Terr. 353 | Wash. Terr. | 1888

Mr. Justice Langford

delivered the opinion of the court.

In this case the appellee brought his action against the appellant to recover $15,000 for an injury received by the appellee from the fall of a pulley from the machine of appellant upon the appellee. The said machine was what is known as a trimmer in appellant’s sawmill. Appellee was employed by appellant to operate this machine, and while operating it received the injury. Appellee claims that the-accident was caused by a latent defect in the machine, without fault upon his part. Appellant claims that there was no real defect in the machine, but that the accident was caused by want of care and skill upon the part of appellee. A jury trial was had, and, before the case was submitted to the jury, appellant moved that the court would take the ease from the jury and enter a judgment against the appellee for costs, and, after the verdict, moved the court to set aside the verdict and grant a new trial. Both motions were made-upon the same ground, to wit: that the evidence would not. support a verdict for the appellee.

*362During the trial, exceptions were taken by the appellant to the admission of certain evidence, to arguments of appellee’s counsel, and to the giving and refusing of certain instructions. We will first consider the motions of non-suit and for new trial, and the rulings thereon. The injury was caused by the fall of a heavy iron pulley. This fall was caused by the wheel becoming somewhat looser than usual upon the shaft, and thus impinging upon the cap or nut which was on the end of the shaft, causing said nut to unscrew and come off. and thereby let the pulley fall. The pulley, it is claimed, became loose and impinged upon the nut or cap because the shaft was not properly oiled by appellee. The pulley, in this particular machine, turned in such a way that when it turned it impinged against the nut and unscrewed it. The only proper way to have the nut screwed on is so that the friction would tighten the nut, and this is the only reasonable and safe way to put on the cap or nut. Had this machine been thus constructed, the loosening of the pulley could not have caused the accident. The dangerous condition of this nut upon account of its malcon.struction was such that no man running the machine with ordinary skill and care could have discovered this defect, and this defect was utterly unknown to appellee.

The appellant claims that appellee, by not oiling the machine, caused the pulley to work too loosely on the shaft, and that this was appellee’s fault.

There is a conflict of evidence as to whether appellee did properly oil the machine, and it is difficult to determine where the preponderance lies. There is a conflict of testimony as to whether appellee had notice that the machine was dangerous, but there is no evidence that the looseness of the pulley would have caused the nut to work off, and Tience the pulley to fall, if the machine had been of the ordinary or proper construction. The proof is positive that, with a proper construction, there would have been no danger of the pulley falling, even if it were as loose as alleged. The notice claimed to have been given to appellee, was not notice of the wrongful manner in which the nut was put on.

*363It is concluded that no skill or care could have informed appellee of the real and only danger resulting from the improper cap, and the defect from which alone the accident happened. No particular skill is shown to be required to operate a trimmer, and it is not shown that appellee had not such skill or care as was necessary. If it were, no skill or care by the defendant could have prevented the nut from coming off, and hence the pulley falling and the consequent injury. The defective manner of fastening on the nut was the sole cause of the danger and accident. This danger was well known to the appellant when it set appellee at work, and could not have been nor was it known to the appellee. The jury would have entirely failed in their duty not to have found a verdict for the plaintiff, under this evidence, and the court committed no error in submitting the case to them and entering a judgment upon the verdict.

As to the verdict of $10,000 being excessive, we do not think it is, as defendant is entirely deprived of health and ability to labor for life. As to the exception to the argument of counsel, we think it not well taken. Much latitude is allowed to counsel, and, so far as the record shows, we know not whether it was not a proper retaliation for improper arguments of the counsel for the appellants. However this may be, after the words were uttered, the court could do nothing of service except to give the jury instructions as to how they should consider the remarks, yet appellants requested no instruction on the point.

The complaint alleges that the appellee, by the injury, is deprived of the ability to follow his business, or work, or provide for his family. Being deprived of those things implies that he had them, and would have had them in the future, for to be deprived of by the injury can mean no less than that appellee had them before deprived. What was the particular kind of work or business of which he was thus deprived is not stated, but the allegation gave notice that he intended to prove some particular kind, and if the appellant was satisfied to go to trial upon this general notice he ought not to complain at the trial. If not satisfied by the description, he *364might have had it made more definite, on motion, or could have had a bill of particulars. Hot moving for this, he waived indefiniteness.

Appellant made objections to the admission of evidence that, after the accident, the appellant put a plank under the pulley so as to arrest its fall if it should come off in the future.

Acts and words of a party which expressly or impliedly are admissions against interest are admissible. The putting up of a plank to stop the falling pulley is a declaration that the pulley is liable to fall, for the plank is useless for any other purpose. If the change of the situation by appellant might have been made for an entirely different purpose, the rule might be different. William Morris had run a trimmer for some time. The evidence does not show that it requires any particular science or skill to run one, or that it requires a. machinist to do it. His testimony was properly admitted.

Appellee called his wife to the witness stand, caused her to be sworn to testify to the truth, the whole truth, and nothing but the truth in the case, and, after her oath, asked her questions. We think a more emphatic consent by her husband that she might testify is hardly possible.

Objection is made that modifications were not given to certain numbered instructions. The proper modifications, were given in instructions of a different number. It is enough to give an instruction once. Eeiteration would have been a fault which the court properly avoided.

Defendant’s 7th instruction was not good law. It implies, that if appellee knew of any apparent danger from which he did not suffer, he could not recover. Certainly a knowledge of danger, in general, which would not have existed except for a particular defect of which appellee had not notice or knowledge, is immaterial.

Defendant’s 8th request is faulty for a similar reason. What Smith and appellee saw was not the danger from which appellee suffered.

Defendant’s instruction 9 has the same defect as 7 and 8.

Defendant’s instruction 10, to the effect that if the ma*365chine had been in use several years it should be deemed safe, was wrong, for the evidence, without conflict, shows that the machine had been dangerous during the whole time of its use.

Defendant’s instruction 11, to the effect that if such machines were babbitted and oiled they had been considered safe, is wrong, for the failure to keep it oiled would not have contributed to the injury.

Defendant’s 16th and 18th instructions have the same fault as his instruction 10.

Defendant’s request 26 is, in effect, that if appellee was disabled from heart disease, even if it were caused by the injury, that he could not recover.

As to the direction of the court to find special facts, this is a matter in the discretion of the court, and no error. The instructions given by the trial court were correct and full, and were at least as favorable to appellant as the law would permit, and he cannot justly complain of it in parts or as a whole.

We find no error in the points above mentioned, or in regard to any point or rulings excepted to.

Let the judgment be affirmed.

Turner, J., and Allyn, J., concurred.