94 Kan. 339 | Kan. | 1915
The opinion of the court was delivered by
The plaintiff sued for damages on account of an injury received by the fall of a friction-hoist elevator in the defendant’s packing house. The facts including the description of the elevator are found * in Root v. Packing Co., 88 Kan. 413, 129 Pac. 147. The decision in that case ordered a reversal of the plaintiff’s judgment for error in overruling a demurrer to his evidence. The case was again tried, resulting in a verdict and judgment for the plaintiff, and the defendant appeals, complaining of the overruling of the demurrer to the evidence, of the admission of certain evidence, the exclusion of certain evidence, the giving a,nd refusing of certain instructions, and the amount of the verdict. The petition alleged that the elevator was unfit for human beings to ride on, in that its construe
Complaint is made that improper evidence was received, both expert and nonexpert, as to the operation of friction-hoist elevators of the kind in question. It is argued that testimony that elevators of this sort work improperly because overloaded or because improperly adjusted or because of moisture on the bull wheel or wear on the face of the brake block does not tend to show anything inherently wrong in this class of elevators, and it is contended that testimony declared incompetent in the former opinion was received upon the second trial. That thus referred to in the former opinion was expert or opinion evidence and.not evidence of the actual operation of -the elevator; that is to say, it was therein held incompetent for a witness to testify whether or not in his opinion certain things would happen in the operation of the elevator; ánd- on the second trial' the happening of such things was actually testified to. While a number of the witnesses were sufficiently familiar with such elevators to- be deemed experts, their testimony was mainly with reference to actual construction and operation, and we
Criticism is made of certain medical evidence touching the plaintiff’s condition after the injury, but nothing prejudicial is found therein.
Complaint is made of the evidence of one witness who described the safety devices and was permitted to testify that he knew of no test thereof having been made. This taken in connection with the evidence of improper and defective operation and the charge of failure to inspect was neither outside the issues nor incompetent.
Error is predicated upon the admission of the testimony of Doctor Hassig that the plaintiff did not complain to him of hernia or varicose veins when examined by the doctor, to which the plaintiff replies that on cross-examination the plaintiff testified that he did not tell the doctor anything about these matters, because he was looking for it himself; also, that Doctor Hassig testified on redirect examination that the plaintiff told him about the varicose veins, and hernia. The abstract shows that this was the fact, and hence this complaint is without substantial basis.
Fault is also found because the court refused the testimony of a master mechanic for another packing house that the electric elevators there require more frequent repair than the friction-hoist elevators, and that the former would sink down a little when brought level with the floor and loaded. The witness did testify that friction-hoist elevators with the block properly adjusted would not sink and slide down the shaft; that when loaded and brought up level with the floor and loaded there would be a slight descent, depending on what kind of rope is used on the cable; that it would simply take the slack out of the rope. The defendant offered to prove by this witness that as to the six friction-hoist elevators in his plant the electric elevators require more frequent repairs and will sink
Complaint is made of instruction No. 8, which was to the effect that the test to be applied in determining the question of negligence was not merely whether the defendant omitted to do something which it could have done, or whether better machinery could have been obtained, but whether in selecting the elevator ordinary care and prudence were exercised and whether it was in fact adequate and proper for carrying passengers and employees, and the use to which it was applied. The use of the words “merely” and “passengers” is the fault found with this instruction. There was no evidence that the elevator was used for the transportation of persons other than employees, and while the use of the word “passengers” was inaccurate the instruction as a whole was not sufficiently misleading to work material prejudice.
It is urged that instruction No. 10 unnecessarily called attention to the fact that the evidence might have disclosed negligence in some other particular than that alleged in the petition, but as the jury were plainly told that they must be confined to the allegations of negligence found in the petition it is impossible to see how the defendant was harmed by this instruction.
Instruction No. 14 was to the effect that if the fall was caused by the defective, improper and faulty construction of the elevator and that the appliance regularly and ordinarily used for stopping it failed to work
Instruction No. 16, submitting the question of diligence in inspection of the elevator, is complained of on the ground that the defendant made no attempt to prove failure in that respect. There was testimony by a witness whose duty it was to inspect the elevator that on the morning before the accident he saw the brake block and saw that it was too thin, but did not notice whether it was cracked or not. And there was considerable testimony introduced in chief and drawn out in cross-examination touching the matter of inspection which made this instruction applicable and proper.
Complaint is made that the jury were told that they could not assess plaintiff’s damage in a greater amount than the sum claimed in the petition. This language, however, closed an instruction giving the proper basis of recovery, and the result does not indicate, as suggested, that the jury regarded it as a hint that more than twice the amount found would have been approved by the court.
Instruction No. 8, offered by the defendant,, its refusal being assigned as error, was to the effect that any single defective or imperfect operation of the elevator would not of itself be sufficient evidence nor any evidence that the defendant had any previous knowledge or notice of any defect or insufficiency. The jury were 'expressly told, however, in the 16th instruction that if •they should believe that the elevator was reasonably safe and suitable and the defendant had used due diligence in the matter of inspection and repair it could not-be held liable for any injury not resulting from failure to exercise such care nor resulting from any cause which could not be foreseen or prevented by the exercise of
Finally, it is insisted that the verdict is excessive and was given under the influence of passion and prejudice. This was one of the grounds set forth in the motion for a new trial, and the fact that such motion was overruled would indicate that the trial court did not regard the verdict too large or deem it the result of passion or prejudice. The former trial resulted in a verdict for $5000, the latter, five years after the in
“When I come to, everything hurt me. I could not sit or lay down; . . . They took me home in a carriage. ... I remained in bed six months, during that time everything hurt me. I could n’t lift myself. . . . I suffered the greatest pain in the right side for six months. I got up and stayed up about ten minutes. For a whole year I could n’t sit up long, on my feet all the time. I get up and walked awhile and then lie down again. After the six months I was at the hospital eight days. I left the hospital because they was going to make an operation on me, and I didn’t want to be operated on. I have tried to work but I can not. When I started to work the whole side hurts me and I still have pains in thé side. I- have broken bones down there, ribs, whatever it is. . . I first discovered that I had a hernia or rupture the time I got hurt. In about a week after I was injured I saw those big veins come out on my legs. ... I did n’t tell the Doctor anything about the varicose veins because he was looking for himself. I never told him anything about the hernia. After these varicose veins came on they never went away; they are still larger. . . . The first time I tried to work was right away after the first trial, (which was had in 1911) I tried to get work at an iron foundry. Before the injury I always stood on my feet at my work and all the work I ever did at the packing houses was this heavy work, lifting trucks and pushing them.”
The jury examined the plaintiff’s person, and of course we have no means of knowing what evidence of injury they found thereby or how his condition "and
Having carefully examined and considered each point raised by the appeal the record shows no error of a materially prejudicial character and the judgment is affirmed.