202 F. 452 | 9th Cir. | 1913
(after stating the facts as above).
“Mr. Shepard had that hook made, and that was the hook that was going to be used there, and X thought he knew everything about it — that the hook was safe.”
Another employé testified that he had worked with the hook for a time with full confidence that it was safe to use it, but that he had finally become apprehensive. But he did not impart his doubts to the plaintiff. In view of all the evidence, it should not be held that the
“If you find that defendant was negligent as charged in the complaint, before plaintiff can recover in this action, you must further find that defendant’s negligence was the proximate cause of the accident, that cause which conduced directly to the accident, without which the accident would not have occurred.”
There was no occasion whatever to instruct the jury on the proximate cause of the accident. The evidence showed, and it was assumed throughout the trial, and in the instructions of the court, that the proximate cause was the act of the defendant in supplying a defective hook. There was no attempt to show that it was anything else. It was not a case in which there was a combination of several causes. The court charged the jury:
“The law is that an employer is required to exercise rea sonable care and diligence to provide his employ? or employes with reasonably suitable tools and appliances to work with, and it was therefore the duty of the defendant in this case to exercise reasonable care and caution to provide suitable appliances with which to handle this bucket, and if it did not do so, and by reason of that fact the bucket fell and injured the plaintiff without any fault on his part, it would be liable to him for such injury.”
No exception was taken to this portion of the charge, nor to other portions in which the court properly instructed the jury as to all the features of the case. The court instructed them that it was for them to determine whether the hook was reasonably suitable for the purpose for which it was used, that negligence was not to be imputed from the fact of the accident, but that the burden of proof was on the plaintiff to show by a preponderance of the testimony that the hook was not suitable, and the court, with proper instructions, left' to the jury the decision of the question whether the accident occurred
We find no error.
The judgment is affirmed.