231 F. 611 | 6th Cir. | 1916
The administrator recovered judgment against the cement company for alleged negligence resulting
The casing surrounding the boot of the elevator had fallen into such .disrepair as to admit of the escape of coal dust into the pit. It was not an uncommon occurrence to allow the coal dust there to accumulate to a depth of several feet. When these accumulations were suffered to remain in the pit for a time not definitely shown—the company’s chemist being of opinion that they would not “get afire, if cleaned out every 12 hours”—the dust would develop heat to the degree of spontaneous combustion. This was a source of danger to cmployés, since, as the witnesses in substance say, any appreciable quantity of coal dust falling directly upon the burning portion of the dust, and so as to mix with air at the place of contact, would result in an “explosion,” as some of the witnesses term it, but rather, as we understand, in a dangerous flash of fire. Indeed, while no witness was produced who saw the deceased at the moment he received his injuries, the facts and circumstances shown justify the conclusion, and it is virtually conceded, that he was so badly burned by one of these so-called explosions as to cause his death some hours later.
The day foreman sought to avoid the explosions. One method was to “wet the dust down” by the application of water from a hose conveniently located; but in practice this would cause the fire to smoulder; it would not extinguish the fire. Another plan of the foreman was to remove the accumulations to a place outside of the factory; this, however, was done only in daytime and at irregular intervals, some extending over several days; there was no rule charging
At tire close of.all the evidence the company moved that a verdict be directed in its favor, relying in substance upon the grounds; (a) Negligence of fellow-servants; (b) assumption of risk; (c) contributory negligence; (d) decedent was not at the time of receiving his injury engaged “in the course of his business or employment.” The motion was denied. The company then presented requests for special instructions to the jury, which were in substantial accord with the grounds relied on in the motion to direct. The contention made here is to the same effect.
“As there were no eyewitnesses of the accident, the instruction is correct unless the physical facts, taken in connection with the other testimony, show without question that the deceased could not have received his injuries except he were in a position where he had no right to he or in such a position that he must be held guilty of contributory negligence in assuming that position.”
And again (151 Iowa, 380, 130 N. W. 589):
“We must assume, then, giving heed to the instinct of self-preservation common to mankind in general, that deceased was exercising due care for his own safety in performing the work he was then doing, and it was not error to give the instruction.”
Further, in the absence of evidence to the contrary, we see no difference in principle between the instant case, in the respect now under, consideration, and the evidential effect that is accorded to the finding of a deceased employe’s body at a place where his duty had called him. As was said in Maguire v. Fitchburgh Railroad, 146 Mass. 383, 15 N. E. 904, when applying the rule alluded to:
“The jury might well have believed that he was on the track in the performance of his duty and in the exercise of all the care to be expected of a prudent man.”
A presumption of performance of duty arises in a variety of circumstances, where there is an absence, as here, of direct testimony on' the point in dispute. Worthington v. Elmer, 207 Fed. 306, 309, 125 C. C. A. 50, and citations (C. C. A. 6th Cir.).
It follows from the foregoing considerations of the different grounds urged in support of a directed verdict, that the motion was rightly denied. So far as the requests for special instructions to the jury are concerned, they were embraced in the general charge, except as to features that in our judgment were unsound. The charge of the court was as favorable to the company as its defense justified.
On the other hand, there is a distinct class of decisions forbidding such questions, as well as the answers, while the cause is in course of trial; the theory of these decisions is that, since there are no issues to which the questions and answers can have any relevancy, the real object of the questions is to suggest to the jury that the defendant is protected against loss by an indemnitor not a party to the cause; and the practice occasionally resorted to of so interrogating witnesses is censured, and, except where the designed effect appears to have been completely removed by action of the trial judge, is in effect penalized by reversal of the case in the reviewing court. Kerr v. Brass Mfg. Co., 155 Mich. 191, 194, 195, 118 N. W. 925; Cosselmon v. Dunfee, 172 N. Y. 507, 65 N. E. 494; Hordern v. Salvation Army, 124 App. Div. 674, 676, 109 N. Y. Supp. 131; Frahm v. Siegel-Cooper Co.,
The instant case of course concerns the relevancy of such inquiries and answers only as they occur in examinations made with reference to impaneling a jury. Where it appears to the satisfaction of the trial judge that the object sought through such inquiries and answers as these is in reality solely to test the qualifications of the proposed jurors, the defendant failing, as here, to show that such indemnity does not exist, we think appropriate questions and answers should be allowed under supervision of the court. We do not see why this might not ordinarily be done effectively by a general question put to the prospective jurors collectively; but we are not disposed to hold that questions may not be allowed and answered individually, where in the sound discretion of the judge such course is deemed necessary. The fact is too well understood to require more than a mere statement that in cases where the right of trial by jury exists litigants are entitled to have their cause tried before an impartial jury; and perhaps the most effective means of securing this end is through an intelligent and legitimate exercise of the right of challenge, both peremptory and for cause.
The record here is open to fair inference that a considerate exercise of the right of challenge was the sole object of the course pursued; and consequently that there was neither abuse of privilege nor of discretion in impaneling the jury. It is not a sufficient answer to say that the jurors were nevertheless advised of the possible existence of indemnity; this is simply to suggest the marked distinction between the two classes of decisions before cited. The reason for the one class is to protect a right; the reason for the other is to guard against a wrong. In other words, any question tending to reveal possible interest or bias of a person offered as a juror is admissible because of its relevancy to the matter of his fitness for such service; the circumstance that the question has the additional effect of suggesting the existence of a fact irrelevant to the merits of the case (indemnity in this instance) is not an uncommon occurrence; this, however, is to be remedied through precautionary instructions of the court. But such a question and the testimony sought to be elicited, as well as their entire effect, become inadmissible, when offered in the course of trial, because of total irrelevancy. The present plaintiff in error relies on decisions pertinent to the latter situation; they are not applicable to the instant case. • It should be added that no request was made here, either upon the impaneling of the jury or at the close of the evidence, for an instruction as to the purpose of the inquiries and answers in dispute and the duty of the jurors to disregard them when considering the merits of the cause; and so nothing of this character is before us.
The judgment is affirmed, with costs.