Erickson v. SoyarsErickson v. Soyars
Plaintiff appeals from judgment for defendant entered on jury verdict of no cause for action. The suit is for damages flowing from injuries sustained when he stepped through a hole in the floor of defendant’s truck.
- Plaintiff was employed by Continental Motors Corporation as a plant protection guard. Defendant was. furnishing trucks and drivers, under contract, to Continental'for hauling materials between
During the evening prior to plaintiff’s injury the truck in question had delivered a load of castings and been unloaded at Continental’s dock No. 2 where it was left for the purpose of receiving a new load at 7 a. m. the next morning. At about 4 a. m. of that morning, while it was yet dark and plaintiff was on the job with Continental, he was instructed to admit a truck. to Continental’s premises at a specified guardhouse and to spot it at dock No. 2 about three-quarters of a mile distant. He rode the truck to the dock, dismounted, opened doors in front of the dock to permit the driver to back the truck to the dock and turned on lights making the dock visible. Plaintiff was about to leave the dock and proceed on his tour, when he concluded that the driver might back his truck into another, so he undertook to give the driver directions in backing and parking. The driver did not request this and plaintiff had received no -in
Plaintiff says that the court erred in denying Ms motion for new trial on the ground that the verdict is against the great weight of the evidence. Touching the questions of defendant’s negligence, proximate cause and plaintiff’s freedom from contributory negligence, there were conflicts in the testimony as to the facts and different inferences to be drawn from the facts. A holding by this Court that a verdict is or is not against the great weight of the evidence on a given record affords scant assistance in determining what its holding ought to be or will be on another record. Accordingly, there would be little benefit to the profession or public in recounting the testimony both ways in this case which must be considered in determining the great weight ques
Plaintiff claims error in the reception of testimony of Continental’s traffic manager that defendant had advised him of the hole in the floor before plaintiff’s injury. This was offered to corroborate defendant’s testimony and support his contention that he had discharged his responsibility by giving such notice and that Continental had refused defendant’s requested permission to withdraw and repair the truck prior to plaintiff’s injury. In view of defendant’s claim that the truck was within Continental’s control and beyond his own, under contract, and the fact that the traffic manager to whom the notice was given was an executive employee of plaintiff’s employer, the testimony was pertinent, material and admissible as bearing on defendant’s responsibility for the condition of the truck and on whether he had given requisite warning. The fact that the traffic manager did not so testify when first questioned but changed his testimony to that effect after a recess goes to the credibility but not the admissibility of his later testimony. A witness may correct his testimony. It is for the jury to determine the truth of the testimony given under such circumstances.
Erickson
v.
Milwaukee, L. S. & W. R. Co.,
Plaintiff has assigned numerous errors as to instructions given or requested and refused. The first is that the court should have instructed the jury, as plaintiff requested, that defendant was guilty of negligence as a matter of law because he admitted that he had known of the hole days before plaintiff’s injury. Although that knowledge was an element to be considered in determining defendant’s negligence, it was not conclusive of the subject in view of the existence of questions relating to who had control of the truck and the sufficiency of the warning or
Error is assigned on the court’s instruction that:
“A person, in the exercise of due care for his own safety, is obliged to see what is about him to be seen, and the failure to do so is negligence.”
Plaintiff says this was tantamount to instructing the jury that plaintiff’s failure to see the hole was contributory negligence as a matter of law. This sentence, lifted from context, must be viewed against the background of testimony by others than plaintiff that the hole was visible and seen by them at the time plaintiff was injured and the court’s detailing to the jury of plaintiff’s claim that the darkened condition of the floor and edges of the hole and other factors rendered the hole invisible, as Avell as its other instructions concerning the question of plaintiff’s contributory negligence such as:
“You will note that the person whose conduct we set up as a standard is not the extraordinarily cautious individual, nor the exceptionally skillful one, but a person of reasonable and ordinary prudence. While exceptional caution is to be admired and encouraged, the law does not demand it as a general standard of conduct.”
“An owner has the obligation to use ordinary care and diligence to keep his premises in such condition that visitors would not be unreasonably or unnecessarily exposed to danger. Thus, a person who uses the property in the manner in which it was intended to be used, has a right to presume that it is in a satisfactory condition for such use. They are not guilty of contributory negligence in failing to anticipate and protect themselves against defects in the property from which they were not warned.”
No prejudicial error occurred in this connection. The jury was fairly informed concerning the duty
The court did not err in instructing the jury that if the hole could have been seen in daylight by any person making reasonable use of his normal faculties then failure to do so may constitute contributory negligence and the hole was not rendered a “hidden peril” by reason of the darkness of night. 65 CJS, Negligence, § 38;
Bedell
v.
Berkey,
It was not error for the court to define and outline the respective rights of invitees, licensees, volunteers or trespassers and the duties owed them by the owner of premises. This was material under the testimony adduced. Plaintiff was not entitled to an instruction that he was as a matter of law neither a trespasser nor volunteer and that his presence on defendant’s truck was lawful, imposing upon defendant the duty of exercising due care to avoid injury to him. The proofs left his status in that regard and the consequent duties owed him by defendant a question of fact for the jury under proper instructions as to the applicable law. The court properly submitted it to them as such.
Plaintiff was not entitled to instruction that he was, as a matter of law, acting within the scope of his employment in boarding defendant’s truck. Testimony above noted left that a question of fact for the jury under appropriate instructions which the court gave in that regard.
With respect to numerous other requests of plaintiff to charge, covering such subjects as defendant’s duty to foresee the consequences of his negligence and plaintiff’s contributory negligence, which were not given verbatim as requested, we find that to the extent that he was entitled to it, the substance of
“The office of a charge is — 1st, to explain the issues; 2d, to notice the positions taken by the parties and suggest, so far as the case may require it, the principles of evidence and their application; and 3d, to declare what rule or rules of law will be applicable to any state of facts which may be found on the evidence.”
Souvais
v.
Leavitt,
So tested, the charge served its office.
Affirmed, with costs to defendant.