71 Minn. 34 | Minn. | 1898
After working for defendants in their flax mill for a few days, plaintiff was put in charge of a machine called a “flax break,” used
On the day that plaintiff commenced to operate this break, the rollers became clogged. He stopped it, and, while endeavoring to remove the clogging material from between the rollers, plaintiff’s hand came in contact with the teeth of the picker, causing injury and damage, for which a recovery was sought in this action. The verdict was for defendants, and this appeal is from an order denying a motion made by plaintiff’s counsel for a new trial.
It is contended upon appeal that the trial court erred in three of its rulings made as to the admissibility of evidence, and the first three assignments of error relate to these rulings, while the remainder go either to the accuracy of certain portions of the charge as given, or to the correctness of a number of rulings by which the court refused to charge as requested by plaintiff’s counsel.
We shall at the outset take up the contention that the court erred when it refused to give plaintiff’s tenth request, which had reference to the claim that plaintiff was guilty of contributory negligence, and for that reason could not recover. The request was in this language:
. “10. If you should find that the injuries occurred by reason of any negligence on the part of the defendants, then the plaintiff is entitled to recover, unless it affirmatively appears by a preponderance of evidence on that point that the plaintiff was guilty himself of negligence which contributed to the injuries in question. The question of contributory negligence of the plaintiff is a matter of defense, which must be affirmatively established by a fair preponderance of evidence. If, on this question of contributory negligence, you should find that the evidence was equally balanced, then upon that question you would have to find in favor of the plaintiff.”
The trial court not only refused to give this request, — an excep
“Then, if you find the defendants were negligent in both or either one of the matters I have stated to you, then, in order to entitle the plaintiff to recover, it must appear from the evidence in this case that he was not chargeable with negligence on his part which contributed to his injury.”
This was an instruction that, before plaintiff would be entitled to recover, the jury must find affirmatively that he was not chargeable with negligence which contributed to the injuries of which he complained. Stating that, before plaintiff could recover, “It must appear from the evidence in this case that he was not chargeable with negligence on his part which contributed to his injury,” had the effect of shifting the burden of proof from defendants to the plaintiff upon the subject of contributory negligence. It was equivalent to charging the jury directly that it was incumbent upon the plaintiff, before he could recover, to establish by a preponderance of evidence that there was no negligence on his part which contributed to his injuries. This instruction was manifestly erroneous, for the law is that contributory negligence is a defense, and, as such, must be established by a preponderance of evidence. The burden of proof upon this matter was with the defendants, not upon the plaintiff.
But no exception was taken to this part of the charge, so that the question turns, not upon the error which was committed by the use of this language, but rather upon the sufficiency and correctness of counsel’s tenth request, which, as before stated, was rejected by the court; an exception being reserved to the ruling. If the request preferred and submitted by counsel was a clear and correct statement of the law applicable to the subject it purported to cover, the exception was well taken.
It is urged by counsel for defendants, in support of the ruling, that the natural effect of that part of the request in the following words, “The question of contributory negligence of the plaintiff is a matter of defense, which must be affirmatively established by a
It is true that, when the court is requested to instruct the jury, it is incumbent upon the party making the request to put his proposition in clear, precise and intelligible form, so that no reasonable ground can be left for misapprehension on the part of the jury. But it is not necessary that every possible opportunity for misapprehension be anticipated and guarded against when wording the proposition. Here, in so far as they went, the propositions stated in the request were clear, precise and intelligible. As abstract statements of the law they were correct. The objection to the instruction embodied in the request could not have been that the language was obscure or ambiguous, but rather that it might not be properly applied by the jury to the evidence, without something further and explanatory. That the jury might not fully appreciate that plaintiff’s contributory negligence could be as well established by his own evidence, if it appeared therein, as by that of his adversary, — was no justification for the refusal to instruct as requested, and evidently was not the reason for the refusal. If it was feared that the abstract propositions found in the request might not be correctly applied by the jury to the facts, as proven, the court, of its own motion or upon the suggestion of counsel, could easily have instructed upon this point, and should have done so.
As the rejected request contained a pertinent and material instruction, and the ground was not covered elsewhere in the charge,
In view of another trial, it is advisable to refer briefly to plaintiff’s fourth request, which the court refused to give, an exception being taken. A verdict in plaintiff’s favor, other elements necessary for a recovery being present, might be based upon defects in the flax break growing out of the improper construction of the machine originally, or arising subsequently and because its parts had become broken or displaced. It might be dangerous, unsafe and defective, not only as originally constructed, but because of its condition of repair, and the jury should have been so instructed if the state of the evidence warranted such an instruction. No opinion need be expressed on this point, for it would serve no purpose upon the new trial, which must be had, and at which the evidence may be altogether different.
Order reversed.