125 F. 470 | 8th Cir. | 1903
This is an action for personal injuries which Anton Skoumal, the defendant in error', brought against the Cudahy Packing Company, the plaintiff in error, recovering therein a verdict against the defendant company in the sum of $5,000. The plaintiff below filed a petition which contained, among others, the following allegations, in substance: That during the latter part of the year 1899 he was employed by the defendant company to work in its blacksmith shop as a skilled blacksmith; that on January 15, 1900, while the plaintiff was in the performance of his usual duties, the defendant company negligently furnished to the plaintiff and to his helper a hammer and holding iron which were defective and unfit for use, in that the hammer was too highly tempered and brittle, and was somewhat broken and worn upon the edges thereof; that after using the defective hammer and the holding iron for some time prior to January 15,1900, plaintiff did on that day direct his helper to report the defective condition of the hammer, and request the defendant, through the foreman of its blacksmith shop, to furnish him and his helper with a new hammer that was fit for use, or to repair the hammer which they were using so that it might be further used without danger; that on said day, when this complaint was made to the foreman of the blacksmith shop, he directed the plaintiff to continue to use the hammer for the present, until he had finished the piece of work upon which he was then engaged, assuring him at the time that no immediate danger would be incurred in using it, and promising him that, upon the completion of the job on which he and his helper were then engaged, he would obtain and furnish the plaintiff a new hammer with which to work; that, in reliance upon such assurance and promise, he continued to use the defective tool; that about an hour after such complaint was made and the promise given, and prior to the com
On the trial in the circuit court the defendant company saved exceptions to four excerpts from the charge, on which some reliance seems to be placed for the purpose of obtaining a reversal of the judgment ; but a careful consideration of the parts of the charge to which the exceptions relate has satisfied us that the exceptions are not well founded, and that the charge, considered as a whole, was substantially correct, or at least that the plaintiff in error has no just cause to complain. Inasmuch as the paragraphs of the charge which are said to be erroneous are somewhat lengthy, and consist largely of commentaries on the evidence, such as the trial judge was clearly entitled to make, it is deemed unnecessary to quote them in full. The rule of law which was enunciated in the several paragraphs in question was to the following effect: That if Skoumal, the plaintiff below, saw the defects in the hammer prior to the accident, and continued to use it in its defective condition, he thereby assumed the risk of injury, and could not recover, but that he might recover, notwithstanding he was aware of.the defects in the hammer, provided the jury were satisfied by the evidence that he caused the defective condition of the hammer to be made known to the foreman in charge of the defendant’s blacksmith department prior to the accident, and the foreman, after examining the hammer, acknowledged that it was in a bad condition, but directed Skoumal and his helper to go on with the job then in hand, promising them.that a new hammer would then be supplied, and provided, further, that Skoumal, in reliance upon this promise, continued to use the implement, and was injured by a fragment flying therefrom before the job was completed. This statement of the law was supplemented by the further statement, in substance, that, even on the state of facts last supposed, the plaintiff would not be entitled to recover, provided Skoumal, as a sensible man, could see that, owing to the condition of the hammer, there was danger in every blow he struck, because in that event the danger of using the hammer was so imminent that he would be guilty of contributory negligence.
As before remarked, we are unable to discover any material error in these excerpts from the charge, since the law is well settled that when a defect in a tool or an instrument is called to the master’s attention by his servant, and he directs or requests the servant to continue to use it in its defective condition for the time being, promising to have it soon repaired or to supply a better implement, the servant, by complying with such an order or request, cannot be regarded as having assumed the risk of getting hurt, unless the risk is so great or imminent that a person of ordinary prudence would not have continued to use the defective tool, although he was requested or ordered to do so. It would be little- short of absurd to hold that a
Misconduct of the jury in taking certain exhibits to their room at the conclusion of the trial, and misconduct on the part of. counsel for the plaintiff below in his closing address to the jury, are also assigned as reasons for reversing the judgment below.
The record discloses that, when the jury retired to consider their verdict, the hammer which is said to have caused the injury to the plaintiff’s eye, and an iron used in connection therewith, called a “flatter,” were taken to the jury room, and were examined by the jurors while they were considering their verdict. These two implements had been exhibited to the jury repeatedly during the progress of the trial, because one defense which was interposed by the defendant company was to the following effect: That shortly prior to the accident Skoumal had tempered the flatter, and had made that tool too hard and brittle, and that the injury which he sustained was due to this fact, or, in other words, to the plaintiff’s own fault. Whether he had thus tempered the flatter and made it too hard, and thereby occasioned the injury of which he complained, was one of the disputable issues of fact before the jury, and experts gave their opinion as to whether the flatter had or had not been too highly tempered. The fact that these implements were taken to the jury room was made-one of the grounds of a motion for a new trial, and affidavits on the part of all the jurors were filed. All of the jurors admitted in their respective affidavits that the hammer and flatter were in the jury room and were examined by the jurors, but none of them deposed that such-examination had had any influence upon their verdict, while at least ten of the jurors affirmed that such examination of the two implements as was made in the jury room did not, in their opinion, have-any effect whatever upon the verdict that was ultimately rendered.. In overruling the motion for a new trial, the trial judge remarked that he had no recollection of having told the jury not to take the hammer and flatter to the jury room; but as reputable parties had testified that the court did so instruct the jury, and as the statement of these parties-was in no wise contradicted, and as the court had no personal recollection on the subject, it felt compelled to find as a fact that he did direct the jury not to take the hammer or the flatter to their room. Nevertheless the learned trial judge overruled the motion for a new trial, and directed a judgment to be entered on the verdict; being
The jury were clearly guilty of misbehavior, if, in violation of directions given by the trial judge, the tools in question were taken to their room. But it does not follow that such misbehavior was fatal to the verdict. In pur opinion, it ought not to have that effect unless it is reasonable to conclude that the defendant company was in some way put to a disadvantage or was prejudiced by the action of the jury, and did not have a fair trial of the issues involved in the case. It does not seem reasonable to conclude that either party was prejudiced by the action of the jury in taking the hammer and the flatter to their room for the purpose of making a further examination thereof. They were inanimate objects which had been introduced in evidence and frequently exhibited to the jury in the progress of the trial. The presence of the hammer and flatter in the jury room afforded the jurors an opportunity to make a closer inspection thereof than they had been able to make during the progress of the trial, and also enabled them, to determine with greater accuracy whether the flatter had or had not been too highly tempered. As they could only be used for such a purpose, and were in a measure helpful to the jury in reaching a right conclusion, we can perceive no sufficient reason why they should have been excluded from the jury room, inasmuch as the object of all trials before a jury is to attain a right result' as respects questions of fact. In the case of Hix v. Drury, 5 Pick. 296, 302, it was held that if a paper which has'not been introduced in evidence is delivered to the jury, by design, by the party in whose favor the verdict is returned, the verdict will be set aside. In Woodbury v. City of Anoka, 52 Minn. 329, 54 N. W. 187, a request was made during the trial that the jury be taken from the courtroom to view and examine the condition of a certain sidewalk which formed the subject-matter of the controversy. Notwithstanding the refusal of the court to permit the jury to make the examination, two of the jurors did examine it with some care during a recess of the court, and such action on their part was held to be such misconduct as justified the court in setting aside the verdict. Also, in the case of Consolidated Ice Machine Co. v. Trenton Hygeian Ice Co. (C. C.) 57 Fed. 898, it appeared that, on the trial of an action to recover the price of an ice plant sold, where the defense rested largely upon the alleged poor quality of ice which the machine produced, some of the jurors, in passing out of the courthouse at recess, saw a wagon filled with ice which had been produced by the machine, and paused for a time to examine the ice, and smelled and tasted it, with a view of ascertaining if the ice was of good quality. This was held to be misconduct on the part of the ’jury, but inasmuch as it appeared that such misconduct was known, before the conclusion of the trial, to counsel for the complaining party, -against whom a verdict was eventually rendered, and inasmuch as the fact was not brought to the attention of the court until after the verdict had been rendered, the court refused to set the verdict aside.
The foregoing cases have been cited by counsel for the plaintiff in error in support of their contention that the misconduct complained of
“The modem practice, * * * both in civil and criminal eases, is to send to the jury room all instruments, articles, and documents, other than depositions, which have been received in evidence, and which will, in the opinion of the trial judge, aid the jury in their deliberations.”
See, also, the following cases: Blazinski v. Perkins, 77 Wis. 9, 45 N. W. 947; Gresser v. State (Tex. Cr. App.) 40 S. W. 595; Hickman v. Layne, 47 Neb. 183, 66 N. W. 298; Illinois Silver Mining & Milling Co. v. Raff (N. M.) 34 Pac. 544; People v. Page, 1 Idaho, 106; Louisville & Nashville R. R. v. Berry’s Adm’x, 96 Ky. 604, 29 S. W. 449.
We are further confirmed in the view that the alleged misconduct of the jury did not materially affect the result of the trial by the fact that the trial judge refused to set the verdict aside and grant a new trial when the action of the jury was called to his attention, as he should have done if he was satisfied by the showing made, or thought it probable, that the conduct complained of was in any material respect prejudicial to the defendant.
The bill of exceptions shows that during the trial the plaintiff below called as a witness one of the defendant’s attorneys, and asked him if it was not a fact that he represented the Maryland Casualty Company, of Baltimore, Md., and if he had not written a certain letter to the latter company concerning the-case against the defendant company, which was then on trial. An objection to these questions was interposed, which was sustained, and they were not answered. Notwithstanding this fact, it. is said that in his closing argument the plaintiff’s attorney, referring to the incident, said that he had called one of the defendant’s attorneys to the stand and propounded the foregoing questions, which had been excluded by the court, and, if a
The method of preserving the question so that it can be reviewed on appeal, whether counsel on the trial have been guilty of such misconduct as entitles the complaining party to a reversal of the judgment, varies somewhat in different jurisdictions. In Thompson on Trials, § 962, it is said that the confusion of views as respects this question of practice is “not very creditable to the courts.” The learned author, after considering the subject at some length, concludes, however, that the correct method of bringing a question of this sort before an appellate tribunal for review is to make a seasonable objec-
“It is the duty of the defendant’s counsel at once to call the attention of the court to the objectionable remarks, and request its interposition, and in case of refusal to note an exception. Thomp. on Trials, § 962.”
The same method of procedure has been adopted and approved in other jurisdictions, and it would seem to be entirely reasonable to require counsel for the complaining party to call the attention of the trial judge to remarks made by opposing counsel, or to a line of argument pursued by him which is deemed to be improper, and to invoke the interposition of the trial judge, and to save an. exception to his action in the usual way, provided he refuses to condemn the action of opposing counsel, or to arrest his line of argument, or to grant other suitable relief. Bradshaw v. State, 17 Neb. 147, 151, 152, 22 N. W. 361; McLain v. State, 18 Neb. 154, 24 N. W. 720; State v. Howard, 118 Mo. 127, 146, 24 S. W. 41; State v. Taylor, 118 Mo. 153, 163, 24 S. W. 449; Rudolph v. Landwerlen, 92 Ind. 34, 37; Dowdell v. Wilcox, 64 Iowa, 721, 724, 21 N. W. 147; Learned v. Hall, 133 Mass. 417, 419; Roeder v. Studt, 12 Mo. App. 566.
It goes without saying that a trial judge has the power, and is always at liberty, of his own motion, to reprimand counsel when they make use of language or indulge in a line of argument that is improper, unfair, or that is calculated to arouse the prejudices of jurors, or divert their attention to extraneous matters, or to issues that are foreign to the case, and no trial judge should hesitate for a moment to exercise such power, although his intervention is not solicited; but, when remarks are made by counsel or arguments are advanced that are deemed to be so far improper and prejudicial to the interests of a party that his counsel resolves to assign them as grounds for reversal by an appellate tribunal, he should at least challenge the attention of the trial judge to the matter, and, if adequate relief is not afforded, should thereupon save an exception, and incorporate it in a bill of exceptions. This was not done in the present case, or at least the bill of exceptions does not show that it was done. The remark that is said to have been made by plaintiff’s attorney on the trial of the case is subject to just criticism, and should not have been made. We entertain no doubt on this point, and feel free to condemn it. The trial court, in the exercise of its discretion, might have set aside the verdict and granted a new trial because of the language complained of. It did not see fit to do so, however, and its action in this respect indicates, we think, that, in the opinion of the trial judge, the remarks which were made did not prejudicially affect the
It is so ordered.