88 P. 587 | Cal. Ct. App. | 1906
This is an action to recover damages for personal injuries.
The case was tried by a jury, which found for the plaintiff in the sum of $7,000, and judgment was entered for plaintiff for that sum.
The appeal is from the judgment and from the order denying defendant's motion for a new trial. The plaintiff was in the employ of defendant in its lumber-mill in Humboldt *462 county and was hurt in the eye by a piece of timber in the course of his employment. The complaint alleges that at the time of said injury defendant maintained and operated in connection with his lumber-mill a certain machine known as a "hog," which was used for grinding and cutting up edgings and waste pieces of lumber into small pieces to be conveyed to the furnaces in said mill to be burned. That such waste pieces of lumber were conveyed to said "hog" from the main floor of said mill by means of a chute about eight feet wide at the lower end and had sloping sides so that said waste pieces of lumber would slide down said chute and into said "hog." Said chute was inclined at an angle of forty-five degrees. It is further alleged that the sides, bottom and end of said chute were constructed of planks about two inches thick, and that said chute was partially covered on the inside with sheet iron or boiler iron, so as to prevent the edgings and other pieces of waste lumber from coming into contact with the planking of said chute, thereby preventing said planking from becoming worn and damaged and also to prevent said waste pieces from protruding through sides or end of said chute. That on December 17, 1902, the day of the accident, and for a long time prior thereto defendant maintained said chute in an unsafe, defective and dangerous condition in this: That the planks of the end or face thereof were so negligently and carelessly fastened that one of said planks became and was loose and dropped down at one end, thereby leaving a crack or hole in the end or face of said chute about three inches wide, through which edgings and other pieces of waste lumber could pass, thereby rendering said chute defective, dangerous and unsafe. That on said day and for ten days prior thereto, plaintiff was and had been employed by defendant to attend said "hog," and that on said day plaintiff was engaged in attending said "hog" in pursuance of said employment. That in order to perform his duties it was necessary for him to stand near said "hog" and directly in front of the end or face of said chute and very close to the end thereof, and with the aid of an iron bar stir up the edgings and other pieces of lumber that might be thrown into said chute, so that they would slide down said chute and into said "hog," and in order to perform said work it was necessary for plaintiff to stand very close to the end of said chute. That on said day, while plaintiff was in the performance *463 of his duties a piece of edging about six feet long was violently forced through said hole or crack in the end or face of said chute and struck plaintiff in the left eye, and and so impaired it that it had to be and was removed.
The appeal is here on a bill of exceptions containing the evidence, but as it is admitted that there is a conflict in the evidence on all the material issues raised by the pleadings, and no errors in the admission of evidence being pointed out, we will not consider the evidence at all. The answer denies specifically all the allegations of the complaint and alleges that the injury suffered by plaintiff was caused by one of the ordinary risks of the employment in which he was engaged, and which he assumed and of which he had full knowledge, and that the injury suffered by plaintiff was proximately and directly caused by reason of his own carelessness and negligence. Error is assigned by appellant in giving so much of instruction eight as we place in italics. The whole instruction reads as follows: "The defendant also alleges that the injury suffered by plaintiff was caused by one of the ordinary risks of the employment in which plaintiff was engaged and which he assumed and of which he had full knowledge, but I charge you that while the servant assumes all the ordinary risks of the business in which he is employed, yet he does not assume the risk from defective premises, machinery or structures furnished him by the master, if the defect was either known to the master or could have been discovered by him by a reasonably careful inspection to discover defects; unless the servant also knew the dangers and risks arising therefrom; and I charge you thata servant will be held to have known of such defect only whenhe had actual knowledge thereof, or when the defect was soobvious that he must have known or simply refused to open hiseyes and see, or when he was put upon inquiry by some discoveryor suggestion of danger which it was gross negligence for himto neglect. And I charge you that the burden of showing such knowledge on the part of the plaintiff rests on defendant."
This instruction was given and upheld in Silveira v. Iversen,
I do not think instruction eight in the case at bar is subject to the criticism made in Thompson v. California Const.Co.,
This instruction, or that part objected to, would be error standing alone. But with the words of instruction 8 ringing in their ears how could it be possible under these words, the "servant is not required to use any degree of care or diligence to discover defects," to understand that if the danger was one that he could not help seeing, and the plaintiff did see, and yet kept on at work with such danger staring him in the face, and under such circumstances he would not assume the risk himself? Besides, the court, in Thompson v. California Const.Co.,
"1970. An employer is not bound to indemnify his employee for losses suffered by the latter in consequence of the ordinary risks of the business in which he is employed, nor in consequence of the negligence of another person employed by the same employer in the same general business, unless the negligence causing the injury was committed in the performance of a duty the employer owes by law to the employee, or unless the employer has neglected to use ordinary care in the selection of the culpable employee."
"1971. An employer must in all cases indemnify his employee for losses caused by the former's want of ordinary care."
Applying the instruction to this case where there was a hole three inches wide in the end or face of said chute through which edgings and other pieces of lumber could pass, rendering the chute dangerous and unsafe for any person to work around it, and it was while the chute was in this condition and plaintiff working around and about it and in front of the end or face very close to the end of the chute, that a piece of edging or lumber about six feet long was forced through said hole and struck him in the eye. It would seem to us that under instructions 8 and 9, reading them together, as the court must have done, the jury must have understood that if the plaintiff could have observed this three-inch hole while standing where and as close to it as he was required to to perform his labor and without hunting around to find it, and kept on at work, he would be contributing to the negligence and likewise to the injury, and thus under said instructions would not be entitled to recover, and the burden of proving this knowledge on the part of the plaintiff was upon the defendant. Thus considering the two instructions, we do not think that there was any reversible error in them. The following instruction is assigned as error: "The preponderance of evidence in a case is not alone determined by the number of witnesses testifying to a particular fact or state of facts. In determining upon which side the preponderance of evidence is, the jury should take into consideration the opportunities of the several witnesses for seeing or *466
knowing the things about which they testify; their conduct and demeanor while testifying; their interest or lack of interest, if any, in the result of the suit; the probability or improbability of the truth of their several statements, in view of all the other evidence, facts and circumstances proved in the trial; and from all these circumstances determine upon which side is the weight or preponderance of the evidence." It is claimed that this instruction is argumentative. It does not appear so to us. The court has simply told the jury the common-sense circumstances known to every intelligent juror by which the statements made by witnesses may be weighed. The court is not limited to the circumstances enumerated in sections 1847 and 2061 of the Code of Civil Procedure. (People v. Miles,
The mere reading of the whole instruction is sufficient to show that there is no error in it. It seems to us well established that "In actions for negligence, the law does not attempt to fix any precise rules for ascertaining what is a just compensation, but from the necessity of the case, leaves the assessment of the damages to the good sense and judgment of the jury, whose province it is to make the assessment." (Lee v. Southern Pac. R. R. Co.,
When all the instructions given are read together and considered as a whole, we are satisfied they express the law, and could not have been prejudicial to the defendant.
Judgment and order affirmed.
Chipman, P. J., and McLaughlin, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on December 22, 1906, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 22, 1907, and the following opinion was then rendered thereon:
THE COURT. — In denying a rehearing in this case the court desires to state more clearly a fact not so fully brought out in the opinion in the district court of appeal. The machine at which the plaintiff was injured was in the basement of the mill, where there was very little light, and there is a decided preponderance of evidence that, standing in the position which he must occupy in operating the machine, the defendant could not see the defect which was the cause of his injury. In other words, there was not merely a conflict in the evidence, there was a preponderance of evidence to the effect that the defect in the machine was a latent defect, not obvious, and only discoverable by a careful inspection. *470