2 Indian Terr. 169 | Ct. App. Ind. Terr. | 1898
In this jurisdiction the statute governing appeals does not require that any assignments of error shall be filed. It does provide, however, that a motion for new trial must be filed, and passed on by the court below, and be brought up to this court by the bill of exceptions, and, when so brought up, it answers the purpose of an assignment of errors. In this case the motion for new trial is as follows: “ The defendant moves for a new trial, because —First. The verdict is not sustained by the evidence. Second. The verdict is contrary to law. Third. The court erred in overruling the demurrer to plaintiff’s second amended complaint. Fourth. The court erred in overruling defendant's motion to strike plaintiff’s second amended complaint from the files, because of the variance between that complaint and the former complaint. Fifth. The court erred in overruling defendant’s motion for continuance, after plaintiff’s cause of action had been changed by the filing of
We will leave the first, second, and tenth of the errors above assigned to be last considered, and dispose of the others in the order stated in the motion for a new trial; and, inasmuch as the demurrer mentioned in the third assignment attacked the second amended complaint on the same grounds as the motion mentioned in the fourth and fifth, and the motion for continuance in the sixth, assignments, we will consider them together.
It is argued that, because the second amended com plaint alleged that the plaintiff’s employment was special,— that he was to perform a single job, — and whereas the first amended complaint alleged that his employment was general (thus invoking the law of master and servant,)' this constitutes such a variance from the preceding pleading as the law will not permit by amendment. While the law of pleading will not allow an amendment which has the effect of changing the cause of action from that stated in the original complaint, we know of no law, nor has any been cited, which prohibits a change, in the amended complaint, of the statement of facts relating to the same cause of action. Indeed, this is often the very object of thé amendment, and, under
The seventh assignment is that the court erred in overruling defendant’s second motion for continuance, which set up the loss of the depositions of his witnesses theretofore filed in the case. It must be conceded that, if the facts which the motion shows the witnesses had testified to in the depositions were true, they were material. But the affidavit of Mr. Coffee denies that the depositions contained the statements claimed by the motion; but, conceding that they were as stated, was there any diligence shown by defendant in procuring this testimony after knowledge of the loss of the depositions? If the written motion, which, by agreement, was written and filed after the trial, contains the real motion as verbally made, there might be some grounds for the claim that diligence was shown. Even then, when it is remembered that, a year before, they had been destroyed by fire in the burning of the court house, and that their loss had not been discovered until the day the case was called for trial, it seems to us a remarkable degree of diligence is not shown. But, be this as it may, the affidavit of Mr. Coffee, supported by the recollection, of the trial judge, is to the effect that popusel, in the real motion for a continuance, admitted tha t
■ The eighth assignment does not point out what testimony was objected to, and therefore is too general to be considered. It points to nothing, and is too indefinite. Edmonds vs State, 34 Ark. 720. This assignment is not urged by counsel.
The ninth assignment is that the court erred in refusing to give instruction No. 6 asked for by the defendant. The general instructions of the court fully and fairly defined “contributory negligence,” as applied to this case. The seventh and ninth instructions of the court, as given, are as follows: “(7) The duty was on the plaintiff to exercise ordinary care and diligence in his efforts to discover defects in the wire rope, and, if he failed to exercise such ordinary care and diligence, lie thereby contributed, by his own negligence, to the injury which he sustained, and he would
The first assignment is that “the verdict is not sustained by the evidence.” The rule governing this court upon this question is that the court will not reverse the decision of the court below, refusing a new trial, when the only ground presented is the mere weight of evidence, unless there is a total want of evidence upon some point absolutely necessary to a recovery, or unless the verdict is clearly and palpably contrary to the weight of evidence. When there is . . . ...... a conflict of evidence, the jury being the exclusive judges of facts, their verdict will not be disturbed. Drennen vs Brown, 10 Ark. 138; Sparks vs Beaver, 11 Ark. 630; Bank vs Wooddy, 10 Ark. 638; Gatlin vs Wilcox, 26 Ark. 309; Oliver vs State, 34 Ark. 632.
It is claimed by the plaintiff that the conversation had between him and Mr. Trudgeon, the manager of defendant’s mill, just before the accident, amounted to a promise to repair on the part of the defendant, and that, relying on the promise, the plaintiff had the right to continue the work with the defective rope. But it must be remembered that the work was but a mere job that would take but a day or two to complete; and, if the language could be construed to amount to a promise, it was not a promise to simply repair, but to supply an entirely new rope. If the understanding was that a new rope was to be supplied, then this was a condemnation of the old one, which would relieve the defendant from any further inspection of it, because it was no longer to be used. And this must have been understood by the one as
But did the aforesaid conversation amount to a promise to repair or to supply a new rope? We think not. The conversation commenced by plaintiff telling Mr. Trudge-on that he came to see him about the rope, — to get his opinion of it; that' it was a little rusty, — not rusted in two anywhere, but that a few strands of wire had been broken and a few were cut; looked as if they had been cut on something, but it seemed to be good. Mr. Trudgeon replied that that was a funny idea. The plaintiff responded that he did not know that it was, or something to that amount. Mr. Trudg-on then said: “The rope is all right; that it would not rust; that it was galvanized steel wire; it would not rust.” Plaintiff then suggested that a new rope be gotten, and asked how long it would take to get one, to which Mr. Trudgeon replied, “Not a great while” The-plaintiff then said, “Why not get one?” The reply was, “That might do, ” and as the plaintiff turned to leave he was told that the rope had been insured for five years. And this was the whole conversation. We fail to find any element of promise in it. The whole purpose of Mr. Trudgeon seems to have been to impress on the mind of the plaintiff the impossibility of the rope being defective on account of rust. He made light of the suggestion that it was defective; said that it was a funny idea; “that the rope was all right”; that it was made of galvanized steel wire, and would notrust. ” When a new one was suggested, he said, “That might do,” but it had been insured for five years, and both knew that it had been in use but. one. The
“Mere suspicions and surmises or belief that the defects will be remedied do not take the place of a promise to remedy them. There must be something emanating from the employer to induce a belief that the defects will be remedied.” 1 Bailey, Mast. Liab. 3076. The after-conduct of the plaintiff is conclusive evidence that he did not believe a new rope was to be supplied.
.Taking the view that the language used did not amount to a promise, either express or implied, we are called upon to determine whether the evidence of defendant’s negligence in not providing a rope sufficient for the purpose, and in not properly inspecting the one used, was sufficient; and, if so, was there any evidence of contributory negligence on the part of the plaintiff? and, if so, was it clearly and palpably against the weight of the evidence on this point as to show that the court committed error in refusing to grant the motion for anew trial? So far as the defendant is concerned, we think it obvious that he had not performed his full duty. The wire rope had been suspended from the smokestack, subjected to the influences of the weather for one year. It may have been insured for five, but he had been informed by the plaintiff that it had been examined, and that there were defective places in it, and, notwithstanding his own views were that a galvanized steel rope would notrust, he had been informed that this particular one did. In the case of Railway Co. vs Harper, 44 Ark. 528, the court say “that, if the company omitted any test of soundness of
Was the plaintiff guilty of contributory negligence? He testified that he was not familiar with wire ropes; and we do not think that a rope of this description, used as this was, was an appliance of such simple construction and of such common use as that the common employe, not in the habit of using it, shall be considered as capable of knowing and understanding its mechanism, and of observing and discovering defects that may exist in it, as to take it out of the rule of a master’s personal duty. In the case of Telander vs Sunlin, 44 Fed. 564, a rope connected with a tackle block was held to be such an appliance as came within the rule of a master’s personal duty. In Lund vs Hersey 41 Fed. 202, a rope which a foreman selected from a quantity on hand for use in hauling a barge from the water was held to be within the term “appliances.” See, also, Baker vs Railroad Co., 95 Pa. St. 211. Of course, much will depend on the. purposes for which it is used. If it constitutes a part of a structure, as of machinery, which is most vital to the safety of the workman, then, however simple its construction, the personal duty of the master to make it strong and safe, and keep it so, is obvious. The very purpose for which this rope was used made it an “appliance,” within the rule.
The proof shows that the defect in the rope at the place where it broke consisted of the inside wires having been destroyed by rust. The outside strands were bright, and had all of the appearance of soundness. The plaintiff, and those who were with him, had made a pretty thorough examination of it, but failed to discover this defect. They found one place where a part of the rope had been lying near the escape valve of the engine that was so badly rusted that they cut it off and threw it away. They found other places where some rust appeared.on the outside, but, upon
The questions as to whether the language used by defendant, as above set out, was such an assurance, and as to whether the plaintiff really relied upon it when he proceeded with the work, were both fairly submitted to the jury by the fifth instruction of the court, which is as follows: “If, on the other hand, you should conclude from the testimony that "the Mill & Elevator Co. bound itself to furnish the ma
But, while the plaintiff was seriously injured, taking into consideration his age-he was 52 years old-and his nec-cessary inability to earn full wages, and all of the circumstances of the case, we think the verdict of the jury excessive. If the plaintiff will remit the amount of $7,500 within 15 days from this date, allowing the judgment to stand for the sum of $5,000, let the judgment be affirmed; otherwise let it be reversed and remanded.