85 Ark. 390 | Ark. | 1908
(after stating the facts). Appellant asks for a reversal of this case on the ground of surprise, arising from the failure of appellee to file or produce in evidence the deposition of W. J. Stewart, or to permit the appellant to do so. This deposition was taken by appellee upon notice to appellant, and there was no agreement that it should be read in evidence. One party has no right to read the deposition of his adversary which, though t filed and published, he had never offered in evidence. Sexton v. Brock, 15 Ark. 345. Whatever may be the rule in other States, this has been the settled practice of the law courts of this State for fifty years, and no useful purpose can be served by changing the rule. The rule is otherwise where the depositions are taken by agreement; then they become the property of either party, upon application to be read in evidence, etc. Western Union Telegraph Company v. Hanley, ante p. 263. In this case the court refused to allow appellant to read in evidence to the jury the deposition of Stewart, but offered to grant it a continuance in order that it might take his testimony, but appellant declined the offer. There was no error in the action of the court.
Appellant contends that there was error in the refusal of the court to give instruction No. 3, asked by it. The instruction is as follows:
“If you find that plaintiff chose a dangerous way of doing his work, when a safer one was open to him, a presumption arises against plaintiff that he was negligent in so performing his work; and, unless you find from the preponderance of the evidence that plaintiff was not negligent in thus choosing the more dangerous way, you must find for defendant.”
The testimony shows that there was only one safe way for the servant to perform the work. Hence there was no testimony upon which to base such an instruction. The refusal of the court to give an abstract instruction works no prejudice against the party asking it, and there is no error in refusing it. Fordyce v. Key, 74 Ark. 19; Frank v. Dungan, 76 Ark. 599. instructions are not intended to settle abstract questions of law, but to guide juries with reference to the evidence in the case, and therefore should not be foreign to the issue in the case, nor inapplicable to the evidence. Terry v. Clark, 77 Ark. 567.
Appellant contends that the verdict is not sustained by sufficient evidence. There-is evidence that the lugs of the machine were fastened with wire, instead of a bolt. The use of the bolt was to adjust the bed plates of the machine. The proper adjustment of the machine required the bed plates to be level with each other. The lowering of one of them made the machine dangerous to operate. An examination of the machine immediately after the accident showed that the back bed plate was an inch lower than the front one. Unless this was done by appellee in attempting to set the bed plates (and he testifies that he did not do so), this lowering of the bed plate was caused by the wire which fastened the lugs together, and which took the place of the bolt in adjusting the bed plates, giving way and permitting the back bed plate to be lowered. Appellant knew that appellee was not skilled in the use of the machine and had little knowledge of its construction, for he had told the superintendent that he thought the machine was out of repair, because the chair seats jumped up and down when he shoved them over the bed plates. When asked, on cross-examination, what caused this, he said he did not know, but supposed it was caused by the knives being dull and gapped. Appellant’s superintendent had warned him not to interfere with the adjustment, and had told him that morning that the machine had been adjusted and was safe to operate.
Appellant was negligent in directing appellee to operate a machine that was dangerous when not properly adjusted, and whose adjustment was made and held with a piece of wire, instead of an iron bolt designed for that purpose. The defect was not obvious; for the defective piece was out of sight except by close inspection, and appellee’s ignorance of. the construction of the machine would probably not have disclosed to him the danger of operating it in that condition had he made a close inspection. Fordyce v. Edwards, 60 Ark. 442; King-Ryder Lumber Co. v. Cochran, 71 Ark. 55. True, the testimony adduced by appellee was contradicted by that on the part of appellant; but the weight of the testimony was a question for the jury, and the doctrine of contributory negligence and assumption of risk was submitted to the jury under appropriate instruction given at the request of appellant.
Appellant also complains that the verdict .was excessive. Appellee testified that his little finger was cut, and that his thumb and the palm of his hand were taken out; that he suffered great agony, and that his hand is still disfigured, and pains him at times. Dr. Christian testified that he was inconvenienced permanently in the use of h'is hand. Appellant required him to exhibit his hand to the jury, and no doubt, under all the circumstances, the jury are the better judges of that question.
Finding no prejudicial error in the record, the judgment is affirmed.