Stephens v. Elliott

92 P. 45 | Mont. | 1907

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

This is an action for damages for personal injuries. The plaintiff was employed by the defendant to work in Madison county. Soon after his employment he was.set to work running a whim, used for hoisting ore from the Lehigh mine, owned and operated by the defendant near Norris. On May 6, 1905, while engaged in this business, the plaintiff was injured, and he brought this action to recover damages. The jury returned a verdict in his favor for $2,500, and from the judgment entered on the verdict and from an order denying him a new trial the defendant has appealed.

At the close of plaintiff’s case, the defendant moved the court for a nonsuit, which was overruled, and at the close of all the testimony made a motion for an instructed verdict, which was denied. These rulings of the court, together with the order denying the defendant a new trial, are assigned as erroneous, presenting the question of the.' sufficiency of the evidence to entitle the plaintiff to recover.

No useful purpose would be served in giving even a brief summary of the evidence. Suffice it to say, we have examined it all and fully concur in the ruling of the trial court in each of the orders above. We think the plaintiff made out a prima facie case, which was sufficient to defeat the motion for a non-suit. And, while the testimony given on behalf of the defendant is reasonably clear, and, if believed by the jury, would have entitled Mm to a verdict, it was contradictory of that given on behalf of the plaintiff and presented issues which were properly submitted to the jury. “The defendant’s evidence, though contradictory, in some particulars, of that put in by the plaintiff, did not make out a case so clear and indisputable as would have justified the court in giving the peremptory instruction requested.” (Lincoln v. Power, 151 U. S. 436, 14 Sup. Ct. 387, 38 L. Ed. 224.)

A verdict having been returned in favor of the plaintiff, the motion for a new trial upon the ground of the insufficiency of the evidence to sustain it was addressed to the sound, legal discretion of the trial court, which heard the evidence as given from the witness stand, had opportunity to observe the witnesses, and was therefore better qualified to judge of the character of the testimony than this court, and with the order denying a new trial upon that ground we are not inclined to interfere. (Fournier v. Coudert, 34 Mont. 484, 87 Pac. 455, and eases cited.)

Exception is also taken to certain rulings of the trial court in admitting evidence on behalf of the plaintiff. It is contended that the court erred in permitting the plaintiff, over objection of defendant, to testify that he was employed by the defendant to work as a teamster, and it is said that this evidence is incompetent and irrelevant under the issues made by the pleadings; and this question is presented, also, by certain instructions given by the court.

The allegation in the complaint is that the plaintiff was injured while he “was pursuing0his occupation of running said whim,” etc. But we cannot see anything inconsistent between that allegation and plaintiff’s contention that he was actually employed as a teamster, but subsequently put to work running the whim against his objections and protests. While actually engaged in running the whim, that was his “occupation,” even though he was employed for a different character of work. We think the evidence was properly admitted, and that the court correctly charged the jury that they might take into consideration the fact, if it was a fact, that the plaintiff was employed for a different kind or character of work, bnt put temporarily at work running the whim, in order to determine whether the defendant, as master, had discharged his duty toward the servant in instructing him as to the dangerous character of such employment, if the jury found that the work of running such, whim was of a peculiarly dangerous character. If the jury found that the plaintiff was not employed for this particular work, that he was not a skilled mechanic, that he was ignorant of the machinery which he was required to operate, and that the work of operating it was of a peculiarly dangerous character, and these facts were known to the defendant, or ought to have been known to him, then it was the duty of the employer to give to the employee instructions as to the dangers incident to such employment.

In Baxter v. Roberts, 44 Cal. 187, 13 Am. Rep. 160, the rule is announced as follows: “Nor is there any doubt that if the employer have knowledge or information showing that the particular employment is from extraneous causes known to him hazardous or dangerous to a degree beyond that which it fairly imports or is understood by the .employee to be, he is bound to inform the latter of the fact or put him in possession of such information. These general principles of law are elementary and firmly established. They are usually applied to cases in •which the employee has sustained injury by reason of some defect or unsoundness in the machinery or materials unknown to him about which he is employed to perform' labor and of which the employer knew, or might have known in the exercise of ordinary care and vigilance upon his part. ’

The act of negligence charged against the defendant is his failure to exercise reasonable care in providing plaintiff with suitable and safe machinery with which to work. Among other particular defects in the machinery mentioned is a worn wire cable in which some of the strands are alleged to have been broken and pieces of wire projected from the cable. While plaintiff was testifying in his own behalf, he was asked by his counsel if the cable was “as smooth as a pencil, or like a new piece of rope.” The question was objected to as leading, but the objection was overruled. The answer of the witness was not at all responsive to the question, and, as a motion to strike out the answer was not made, the defendant cannot now complain, and it is unnecessary for us to consider whether in fact the question as formed was leading.

Dr. Fain, who attended the plaintiff at the time of his injury and for some two months thereafter, was permitted by the court, over the objection of the defendant, to make use of plaintiff’s injured arm to demonstrate or explain his testimony. The reason urged for the objection is that the testimony already given by the plaintiff was to the effect that other doctors had operated on the injured arm after Dr. Fain ceased to give it his care and before the trial. But, conceding this to be true, we wholly fail to understand how it could affect the testimony of Dr. Fain in so far as his conclusions were based upon facts obtained by him at the time of the injury, or why he could not by the use of the injured arm make his testimony all the more easily understood by the jury. Such an inspection of the injured limb in the presence of the jury is usually permitted; at least, the application to make such inspection is addressed to the sound, legal discretion of the trial court, and its ruling will not be disturbed except for a manifest abuse of such discretion. (Swift & Co. v. Rutkowski, 182 Ill. 18, 51 N. E. 1038.) We fail to see wherein the court abused its discretion in this instance. For a very thorough discussion of this subject of autoptic proferenee, see 2 Wigmore on Evidence, chapter 37.

Dr. Bradley also testified on behalf of the plaintiff, although he had never seen the injured arm until two days before the trial. By this witness the plaintiff was apparently attempting to anticipate and refute a theory of defendant that plaintiff was simulating, and that in fact his injuries were not so serious as he claimed, and also to show that the injuries were of a permanent character, as claimed by the plaintiff in his complaint. So far as the testimony given was directed to the question of plaintiff’s simulating, it might have come more properly in rebuttal; but this was not the objection made to it, and, in any event, the order of proof is largely within the discretion of the trial court. (Campbell v. Rankin, 2 Mont. 363; Tague v. John Caplice Co., 28 Mont. 51, 72 Pac. 297.) The objection offered was that it was incompetent and irrelevant, but we are not able to agree with counsel in either of these contentions. The defendant offered testimony tending to show that plaintiff had made exhibitions of the use of his injured arm some time after the accident and had carried a bucket with contents of •considerable weight in the hand of his injured arm. The evident purpose of this evidence was to contradict the testimony of plaintiff that since his injury he had not been able to grasp anything with his right hand, and to leave the impression that plaintiff was in fact simulating. As we have said, the logical ■order of proof probably was not followed; but the testimony of Dr. Bradley that the plaintiff could not simulate the condition ■which the witness found, or the consequences of such condition, was both competent and relevant.

Dr. Bradley was also permitted to make an experiment, or rather demonstration, before the jury. He testified that the motor nerves of plaintiff’s right arm were entirely destroyed, and that in sympathy with this condition the sensory nerves, which control the feeling in the hand, had become so far paralyzed that the plaintiff had no feeling in his hand; and to demonstrate this he was permitted to stick a hypodermic needle into the back of plaintiff’s right hand. We cannot see any objection to the order of the court in permitting this demonstration before the jury. That such demonstrations are permitted is quite generally recognized by the courts and text-writers. In Osborne v. Detroit (C. C.), 32 Fed. 36, it was held that, where the plaintiff claimed to be paralyzed by a fall, it was not error to permit a medical attendant, who had not been sworn, to demonstrate the loss of feeling on the part of the plaintiff by thrusting a pin into the side of plaintiff claimed to be paralyzed. (See, also, 2 Jones on Evidence, sec. 406, 1 Wigmore on Evideuce, sec. 445, and 2 Wigmore on Evidence, sec. 1160, where-the subject is treated at length.)

Upon the trial counsel for plaintiff offered and read in evidence, over defendant’s objection, certain mortality tables for the purpose of showing the probable expectancy of plaintiff’s, life. The particular objection urged was that the tables were-not identified, but were read by an attorney who was not a. witness and not under oath. While there is some conflict in the authorities, the weight of the authorities seems to be in-harmony with the trial court’s ruling, that the court takes judicial notice of standard mortality tables, and, if the court is satisfied that the one offered is of that character, no further-identification is necessary; and it is immaterial that the portion read is read by an attorney who is not sworn as a witness in the-case. (17 Ency. of Law, 2d ed., 900; 20 Ency. of Law, 2d ed., 886; Keast v. Santa Ysabel G. Min. Co., 136 Cal. 256, 68 Pac. 771; Nelson v. Branford L. & W. Co., 75 Conn. 548, 54 Atl, 303; Lincoln v. Power, above.)

Exception is taken to the refusal of the trial court to permit the jury to be taken to the Lehigh mine for the purpose of inspecting the machinery by which the plaintiff alleged he was injured. Certain drawings of the machinery were presented to the jury, and upon inquiry from the court the jurors all said that they understood the situation. In view of this and the considerable distance which the jury would have been compelled to travel to the mine, we certainly cannot say that the court abused its discretion in refusing defendant’s request, and that it was a matter of discretion in the trial court is settled beyond, controversy. (Maloney v. King, 30 Mont. 158, 76 Pac. 4; Code Civ. Proc., sec. 1081.)

Exception is taken to instruction No. 3 given by the court. It is said that it is erroneous in two respects: First, in that it fails to advise the jury that they must find that the defendant had knowledge of the defects in the machinery of which complaint is made. But that objection is not tenable, for it is immaterial that the master did not know of the defects in order to hold him liable, if by the exercise of ordinary care he should have known of them. The rule of law is that the master shall exercise reasonable care to provide his servant with reasonably safe appliances with which to work. (Anderson v. Northern Pac. Ry. Co., 34 Mont. 181, 85 Pac. 884.) And this rule, we think, was fully given in the instructions of the court.

Second, it is said that this instruction would have warranted a verdict for plaintiff, even though he was guilty of contributory negligence, and this contention might be justified if this-instruction was considered alone; but the instructions should be considered as a whole, and in this ease the court very fully' and clearly covered the questions of contributory negligence- and assumption of risk in instructions 6 and 15, so that the jury could not have been misled by instruction No. 3. And what we have said is equally applicable to one of counsel’s arguments against instruction No. 4. In instructions 11 and 12 the jury were told what result should be reached in ease they found plaintiff had contributed by his negligence to his own injury, or had assumed the risk. The other objection to instruction No. 4 and the objection to instructions 7 and 8 are based upon a consideration of the evidence, and we must content ourselves with saying that we are- not able to give the evidence the same effect which counsel for appellant do.

Instruction No. 5 correctly states the law applicable, to this case. It deals with the duty of the master to instruct his servant under certain circumstances such as are presented in this ease, under the plaintiff’s theory of it. (1 Labatt on Master and Servant, Chapter 16.)

Exception is also taken to instruction No. 9, and it is said that this instruction would warrant a verdict in plaintiff’s favor, if the jury found that he was inexperienced in handling machinery of the character he was required to handle, even though the jury should find that he was guilty of contributory negligence. We think counsel for appellant misconstrue the language of this instruction. The evidence offered on behalf of plaintiff tended to show that he had never worked around a mine before; that he had never seen a whim or wire cable before, knew nothing about them, and in fact had worked here for portions of only three days before the day of his injury; that he was employed for other work and engaged in this particular undertaking under protest to defendant’s foreman that he was inexperienced in this particular character of work, and did not receive any warning of the dangers incident to such employment. While some of this evidence is disputed by witnesses for defendant, it was nevertheless a proper subject for. consideration by the jury. This instruction merely tells the 'jury that in determining whether the plaintiff was guilty of contributory negligence they might take into consideration his experience or lack of experience in the employment, and his knowledge or lack of knowledge of the risks incident to such employment, and this is clearly correct.

In Hill v. Southern Pac. Co., 23 Utah, 94, 63 Pac. 814, it is said: “And in their [the jury’s] deliberations upon this question they had a right to take into consideration his age, inexperience, and any lack of knowledge or understanding of the risks incident to his employment, in the absence of any explanation to him of the dangers connected therewith by his employer. 'After all, it is not so much a question whether the party injured has knowledge of all the facts in his situation, but whether he is aware of the danger that threatens him. What avails it to him that all the facts are known, if he cannot make the deduction that peril arises from the relation of the facts? The peril may be a fact in itself of which he should be informed’ ”; and see numerous cases cited. When this instruction is read in connection with instructions 6, 10, and 11, we think it is not open to any of the criticisms made upon it.

The answer of the defendant is in effect a general denial of all the material allegations of the complaint, excepting the allegation of plaintiff’s employment, and a plea of contributory negligence and one of assumption of risk. By instruction No. 11 the court told the jury that the burden of proof was upon the defendant to establish the defense of contributory negligence, and a like rule was announced with respect to the defense of assumption of risk in instruction No. 17. Appellant contends that these instructions are erroneous, and cites Kennon v. Gilmer, 4 Mont. 433, 2 Pac. 21, and later eases, and contends further that the evidence on the part of the plaintiff shows, or tends to show, that his negligence contributed to his injury, and that he assumed the risk incident to such employment. ¥e are not able to make either of these deductions from the evidence offered on plaintiff’s behalf, and conclude therefore that the rule announced in Eennon v. Gilmer has no application, and that the instructions correctly state the law. (Nord v. Boston & Mont. Con. C. & S. Min. Co., 30 Mont. 48, 75 Pac. 681.)

Instruction No. 14 is criticised upon the ground: First, that it is too complex to be understood; and, second, that it was apt to lead the jury away from a consideration of the question whether the plaintiff contributed to his own injury. Again, we are unable to agree with counsel in either of these contentions. In our view this instruction contains a clear and concise statement. The rule which it announces is, to say the least, as favorable to appellant as he could possibly require.

In appellant’s specifications of error, instructions 12 and 18 are mentioned, but no argument is made in the brief upon either of these. No. 18 is mentioned in the body of the brief, but the argument is directed to the giving of No. 17 and is not applicable at all to instruction No. 18.

Exception is taken to the refusal of the trial court to give each of four instructions asked.by the defendant. The first of these is erroneous, in that it casts the burden of proof that plaintiff was not guilty of contributory negligence upon him whereas, the court correctly told the jury that the burden of proving the affirmative of that issue was upon the defendant.

There is probably not a correct copy of the second of these offered instructions in this record, since what is printed is wholly meaningless in the first portion of it. If the instruction was offered in the same form as it appears in the transcript, the court would have erred grievously if it had given it.

The third of these offered instructions covers substantially the same ground as No. 15, given by the court, and for that reason no injury resulted from the court’s refusal to give it.

The last of these offered instructions assumes a fact which was directly in dispute, viz.: Was plaintiff employed to run this whim? Plaintiff contends that he was employed as a teamster, and went to work running the whim against his protests,, and only for fear of losing employment in case he refused. On the contrary, defendant contends that he employed plaintiff for the very purpose of running, this whim. The court properly refused to give this instruction. It is always error for a trial court to assume as a fact a matter which is directly in issue. (Lindsley v. McGrath, 34 Mont. 564, 87 Pac. 961.)

Upon the whole record the case appears to have been fairly tried and submitted to the jury under instructions as favorable to the defendant as he could ask.

The judgment and order are affirmed.

Affirmed.

Mr. Cheep Justice Brantly and Mr. Justice Smith concur.

Rehearing denied December 7, 1907.

Case Details

Case Name: Stephens v. Elliott

Court Name: Montana Supreme Court

Date Published: Oct 28, 1907

Citation: 92 P. 45

Docket Number: No. 2,437

Court Abbreviation: Mont.