108 Tenn. 657 | Tenn. | 1902
This is an action for damages for personal injuries by an employe of the defendant company against the company. There was a trial in the Court below before a jury and a verdict for the defendant, and plaintiff has appealed and assigned errors. Plaintiff was, when injured, operating what is called a heading machine. This machine is kept from reversing by an attachment known as dogs, being a piece of iron so shaped as to work in the cogs. It is claimed that the injury was caused by the worn and defective condition of these dogs; that they had been in use a long time and became badly worn and defective. It is also claimed that attention of the company was called to the defects and a promise was made to rectify them, which was not
It has been repeatedly and continually held that this is not sufficient, and the assignment must be, in substance, that there is no evidence to support the verdict. But, if the assignment was proper in foi’m and substance, it is not supported by the record, as the weight of the evidence is that the machine and dogs were in good condition and not defective, and there is evidence tending to show that the injury was caused by the negligence and careless handling of the machine by the plaintiff himself.
It is said that the Court erred in not allowing the plaintiff to contradict one of his own witnesses, by showing previous inconsistent statements made by him. It is said, in support of this assignment, that plaintiff was taken by surprise by the statement of this witness, whom he himself introduced, and should be allowed, therefore, to contradict him.
The rule in such cases is thus laid down: “If the witness unexpectedly give material evidence against
Our cases are in accord with this view. Baxter v. Pope, Meigs, 468; Story v. Saunders, 8 Hum., 663.
It is insisted that the Court erred in declining to allow witness, Graukler, to prove the life of a dog in use as were the dogs in this case. We think this assignment is not sustained by the record, but the witness was permitted to answer and prove that the dogs had been in use fifteen years; had been taken off and fixed and put back from time to time and kept in proper condition, and were in such condition when the injury occurred. He also stated that it would take twenty-five or twenty-six years to wear out the dogs on this machine, inasmuch as
It is next said that the Court erred in refusing to allow proof of repairs made on the machine the day after the injury. It appears that the witnesses were put under the rule, but the witness, Henry Best, was not put under, and he was the person by whom it was proposed to make the proof. He had been listening throughout the trial to all the evidence.
It is contended that the Court erred in not giving a special instruction asked for, to the effect that, if plaintiff was lulled into security by promises of repairs, and they were not made, and the dogs were defective, he would be entitled to recover. The Court, as we think, charged correctly upon this feature of the case, though not in the language of the request, as follows: ‘‘ On the other hand, if the machine was out of repair, and plaintiff notified the superintendent of his department of its condition, and was assured that it was all right, and, on his assurance, he continued to work with it, without knowing it was dangerous, and was injured as a consequence thereof, he can have recovery.” And again: “The law did not require Record to inspect the machine, but did require him to see what any ordinarily
Objection is made to the charge of the Court upon the feature of contributory negligence, and the refusal of the Court to give special instructions asked for on this feature of the case, but we. think the charge of the Court was sufficiently explicit on the subject. This plaintiff asked for an extended and detailed instruction taken from the Encyclopaedia of Law, but it embraced so much that it would probably have confused, instead of aided, the jury.
This disposes of the fifth and sixth assignments. The seventh assignment of error pertains to the duty of the plaintiff to see whatever defects there were in the machine which an ordinarily careful, prudent operative would have seen of its condition. We think the charge of the Court was correct. He did not impose on the plaintiff the duty of a close and minute inspection, and did impose on the defendant the duty of seeing that the machine was in safe condition, as follows: “Under these claims and counter-claims, as made by plaintiff and defendant, the Court charges you, that the law made it the duty of the defendant, the Chickasaw Cooperage Co., to exercise reasonable care and precaution to procure and furnish the plaintiff, Record, a suitable and safe machine for him to work upon, and it also required the defendant to exercise reasonable care and caution to keep the machine in a proper state of repairs. It did not require the defendant
The eighth assignment complains of the refusal of the Court to charge that the jury could not find the plaintiff guilty of contributory negligence in jerking the lever and causing the accident, by mere surmises or speculations, in the absence of evidence tending to show that the injury occurred in that way. Upon this feature of the case the Court charged: “Every question of fact material to claim, as made by the plaintiff, or the claims as made by the defendant, must be determined by the jury solely and alone from the evidence introduced in the case. Every fact is proven by the evidence of witnesses who testify directly to the same, or it is proven by the evidence of witnesses who testify to facts and circumstances from which the facts are inferred. There is always a limit to inferring a fact. It is this: The inference must be a reasonable deduction, rightfully drawn from the facts and circumstances as proven. If it cannot be thus deduced, then no inference can be drawn.” We think this fully covers the matter of instruction asked for and is sufficient.
It was not error to permit photographs and pictures of the machine to be introduced before the jury to illustrate the statements of witnesses. Machine Co. v. Compress Co., 105 Tenn., 201; Bruce v. Beall, 99 Tenn., 309. Besides, plaintiff himself also first introduced pictures to illustrate his contentions.
This disposes of all the assignments of error, and we are not able to find any reversible error in any of them. Upon the proof, the decided weight of the testimony is that the injury was not caused by the defective machinery, but by the carelessness and negligence and want of attention on the part of the plaintiff.
The judgment of the Court below is affirmed, with costs.