168 F. 206 | 9th Cir. | 1909
Lead Opinion
(after staling the facts as above). It is contended that the court erred in permitting two witnesses for the defendant iti error to testify to facts tending to show that the unusual current of electricity which caused the explosion of the fuse was created by a wire connecting two of the coaches of the train, which was pulled out of its coupling, and thereupon fell and came in contact with the hose hanger and grounded the current. It is urged that this evidence was inadmissible for the reason that the only ground of negligence alleged in the complaint was negligence in placing the fuse in the position in the car in which it was, and that it was not alleged that the pulling out of the connecting wire between the trains resulted from any negligence of the plaintiff in error. In other words, the contention is that the defendant in error, having alleged one specific act of negligence, was allowed to introduce evidence of another act of negligence not alleged in his complaint. The .plaintiff in error was using a fuse which was so made as to explode upon the sudden irruption of a strong.electric current. The negligence charged was the act of placing the fuse and leaving it unprotected in a' position where it was dangerous to the motorman, whereas it could have been so placed as to avoid such danger. It was to show how it occurred that a current of sufficient force to cause the explosion came to the fuse that the evidence was introduced, not to show an act of negligence on the part of the plaintiff in error.
“When the defendant is notified with what negligence lie is charged, he is thereby informed that the circumstances which tend to show that he was or was not wanting in due care in that particular will be in issue; and he must ho prepared with evidence respecting them.”
In Railroad Co. v. Chinsky, 92 Ill. App. 50, where the negligence charged was the negligent running of an engine without warning at a crossing, the court held it was entirely proper to allow proof that there were no gates at the crossing, lor the purpose of showing the physical conditions and surroundings of the place where the accident occurred. In C. I. R. R. Co. v. Lane, 130 Ill. 116, 22 N. E. 513, in a similar case, the court permitted evidence to show that there was no flagman at the crossing, although there was no ordinance requiring that a flagman be placed there. The proof was admitted to show the jury the existing circumstances attendant upon the alleged injury. Of similar import is North Chicago St. Ry. Co. v. Cotton, 140 Ill. 486, 29 N. E. 899. In South Chicago St. Ry. Co. v. Purvis, 193 Ill. 454, 61 N. E. 1046, the negligence charged was that the defendant carelessly and recklessly moved its street car in approaching a certain avenue. Evidence that the brake and controller were out of repair was held admissible as bearing on the question of the manner in which the car should have been run when approaching the avenue. ■
Error is assigned to the admission of the testimony of a witness who testified as an electrical expert to the effect that the fuse was placed in a dangerous position. The testimony must have involved a knowledge on the part of the witness of the degree of intensity with which such a fuse would explode and the volume of the attendant electric flash, which would have been within the proper province of expert testimony; but conceding that the question was one of which the jury were competent to judge without the aid of expert evidence, we are of the opinion that the admission of such testimony was not reversible error. The rule is that where the jury, upon the undisputed evidence, must have reached the same conclusion as the expert witness, or where the evidence so admitted is on a point on which the jury are entirely competent to decide in accordance with the general experience, its admission will, upon appeal, be regarded no ground for reversing the judgment. 17 Cyc. 60, and cases there cited.
It is contended that the trial court erred in excluding evidence offered on behalf of the plaintiff in error to show that at the time of the accident the defendant in error had a policy of accident insurance which under its terms provided that the insurance company should be liable to the insured, in case of permanent disability arising from such an accident, for 12 months’ total disability, and that 2 months after the accident the defendant in error freely and voluntarily settled with the company, and released and discharged it from liability under the policy, on account of the injury to his eyes, in consideration of the payment by the company of a sum equal to what he would be entitled to receive under said policy for 4 months’ total disability and 2 months’
Error is assigned to the instruction to the jury on the subject of the assumption of risk. The court said:
“To make a complete and valid defense on that ground, it should be proved by a fair preponderance of the evidence that the plaintiff himself was informed as to the risk there was — the nature of the danger in which he was placed for work, with that fuse located as it was. * * * The law does not under any circumstances exact of him the use of diligence in ascertaining such defects, but charges him with knowledge of such only as are open to his observation ; beyond that he has the right to assume, without inquiry or investigation, that his employer has discharged his duty of. furnishing him with safe and proper instruments and appliances.”
If these instructions were open to objection, the error therein was fully cured by the remainder of the instructions on the same subject, in which the court said:
“He is chargeable with the assumption of the risks that were necessarily incident to the employment, and with the assumption of risks which he knew about, of which he had knowledge — actual knowledge — and also with the assumption of risks which were obvious and which should have been known to him, if he had been vigilant and alert for his own sake. If the fuse was placed in a situation where it would injure him by its explosion, and there was negligence on the part of the defendant in placing it there, the question then to be decided is whether the plaintiff himself knew that it was liable to explode and flash in his eye and do him injury. If he had that knowledge, it should be considered that he assumed all the risk, and he is not entitled to compensation by reason of the injury which he suffered.”
We find no error for which the judgment should be reversed. It is accordingly affirmed.
Dissenting Opinion
(dissenting). I am unable to agree to the judgment in this case. As stated in the opinion, the sole negligence alleged in the complaint was the improper and unnecessary placing by the defendant company of the fuse in the front part of the motorman’s cab, at a height about as high as the motorman’s face, and in a position of great danger to the motorman while engaged in the operation of the car. It appears from the record that on the trial the plaintiff was
In respect to the defense of an assumption of risks by the plaintiff, set up by the defendant, the court instructed the jury as follows:
“It will be for the jury to consider the facts as proved by a fair preponderance of the evidence, and determine whether that defense has been sustained or not. To make a complete and valid defense on that ground, it should be proved by a fair preponderance of the evidence that the plaintiff himself was informed as to the risit there was — the nature of the danger in which he was placed for work with that fuse located as it was. He is chargeable with the assumption of the risks that were necessarily incident to the employment, and with the assumption of risks which ho knew about, of which he had knowledge —actual knowledge — and also with the assumption of risks which were obvious and which should have been known to him, if he had been vigilant and alert for his own sake. If the fuse was placed in a situation where it would injure him by its explosion, and there was negligence on the part of the defendant in placing it there, the question then to be decided is whether the plaintiff himself knew that it was liable to explode and flash in his eyes and do him injury. If he had that knowledge it should be considered that he assumed all the risk, and he is not entitled to compensation by reason of the injury which he suffered.”
Upon the same subject the court also gave this instruction:
“The defendant in this case has pleaded that the plaintiff assumed the risk attending the injuries received. You are instructed that the burden of proof is upon the defendant to establish this, as well as every other affirmative allegation pleaded by the defendant. Without considering the question whether the rule charges an employé with knowledge of defects, except with regard to such appliances or instruments as he is engaged himself in using, I think it is sufficient to say that the law does not under any circumstances exact of him the use of diligence in ascertaining such defects, but charges him with knowledge of such only as are open to his observation; beyond that he has the right to assume, without inquiry or investigation, that his employer had dis*212 charged his duty of furnishing him with safe and proper Instruments and appliances.”
From the foregoing it will be seen that the trial court, in more than one place, in effect distinctly instructed the jury that, if the defendant negligently placed the fuse where it did, there was no assumption of risk by the plaintiff, unless he knew the fuse was liable to explode and do him injury. In another place the jury was told that the plaintiff was chargeable “with the assumption of the risks which he knew about, of which he had knowledge — actual knowledge — and also with the assumption of risks which were obvious and which should have been known to him, if he had been vigilant and alert for his own sake.”
In my opinion, the instructions are inconsistent, as well as erroneous. In one respect they are. too favorable to the defendant, for I do not understand that it is essential that a plaintiff shall be “vigilant” or “alert” to discover risks, but that the law is that, to justify a finding that an employé assumed the risks of his employment, it is not essential that he shall have had absolute knowledge of such risks, if they were such that an ordinarily prudent man in his situation, by the exercise of reasonable and ordinary prudence, would have known of them. Choctaw O. G. & R. Co. v. Holloway, 114 Fed. 458-460, 52 C. C. A. 260; 26 Cyc. 1196-1203, and numerous cases thére cited.
For the reasons stated, I respectfully dissent from the judgment here given.