111 P. 723 | Mont. | 1910
delivered the opinion of the court.
In May, 1908, the defendant Pittsburg & Montana Copper Company was operating the Pittsmont smelter, at Butte. Defendant Zachman was employed by the company as a shift-boss, and the plaintiff was employed as a common laborer. In the operation of the smelter it was necessary to remove the slag or refuse from the furnaces and deposit it on a dump near the smelter. The slag was taken out in large pots, placed on a truck, and the truck ordinarily propelled by electricity by means of an overhead trolley. When the truck carrying one of these pots of slag reached the place where the slag was to be deposited, the pot was tilted by means of a crane and the molten mass permitted to flow out; but, on account of the fact that these pots frequently stood for some time after being removed from the furnace and before being emptied, the slag would cool, and a crust would form over the top of the pot and on its edges, so that before the pot could be emptied, it was necessary to take a sledge and break holes in the top crust to empty the molten mass and then take pinch bars and pry out the remaining portions of the crust. On May 30, 1908, the electric power for operating the truck was discontinued on account of a storm, and, when plaintiff went to work at 11 P. M. of that day, the truck
Upon the trial the defendants requested the court to give instruction 13a, but the request was refused. The offered instruction follows: “You are instructed that it was the duty of the plaintiff to exercise reasonable care to avoid injuries to himself, that he was under as great an obligation to provide for his own safety from such dangers as were known to him or were capable of being known to him by the exercise of ordinary care on his part as the defendants were to provide for him. The plaintiff must have taken ordinary care to learn the dangers which were liable to beset him in his services at the time of the injuries com
The jury returned a verdict in favor of plaintiff for $5,000, and judgment was rendered and entered in accordance therewith. From the judgment and an order denying them a new trial, the defendants have appealed. There are numerous assignments of error, but the facts set forth above present the five principal questions for determination.
1. Did the court commit reversible error in permitting the plaintiff to state that he did not appreciate the danger into which he was ordered by Zachman, the shift-boss? Contention is made that the witness was thus called upon to determine for himself the very question which it was the duty of the jury to decide; but with this we cannot agree. The question for determination at the trial was not whether "plaintiff appreciated the danger, but whether, as a reasonably prudent person, under the circumstances, he ought to have appreciated it. The standard in all such cases is that of a reasonably prudent person similarly situated. The plaintiff might say that he did not appreciate the danger, and yet his answer would not avail him if the jury concluded from all the facts and circumstances that, as a reasonably prudent person, he ought to have appreciated it; and the fact that plaintiff prevailed indicates that his lack of appreciation of the danger was deemed by the jury no greater than that of the average prudent person similarly situated. All the facts and circumstances were before the jury: A description of the place, the character of the work, the abnormal condition prevailing with respect to this particular slag pot, and the experience or inexperience of the plaintiff.
What, then, is meant by saying that plaintiff appreciates the danger ? In McKee v. Tourtellotte, 167 Mass. 69, 44 N. E. 1071, 48 L. R. A. 542, the court said: “When we say that a man appreciates a danger, we mean that he forms a judgment as to the future, and that his judgment is right.” If this be correct, and we think it is, how, then, may the jury know whether the plaintiff appreciated the danger or formed a judgment with respect to it, except by the answer he gives to the direct question asked him! As said before, his answer is not controlling upon the jury. It indicates his state of mind at the time he acted; but it is still for the jury to say whether, as a reasonably prudent person, he ought to have reached a conclusion that the place into which he was ordered was dangerous, when considered in the light of the surrounding circumstances.
2. During the course of plaintiff’s examination, he was asked: “Describe the place minutely, the place where you were able to jump, and also the surroundings there where the shift-boss, Mr. Zachman, told you to go in there and see if you couldn’t help yonr partner to pinch it out.” There was not any objection made to the question; but, after the witness had completed his answer, counsel for defendants moved to strike out a part of it as incompetent under the issues made by the pleadings. While it is a general rule that a party cannot sit by and wait until a witness has answered, and then take advantage of the answer if it be favorable to his interest, or move to strike it out if unfavorable, we may waive that objection to the-motion in this instance, upon the assumption that counsel for defendants could not antiei
3. In admitting the conversation between plaintiff and Rohan, the superintendent of the smelter, we are of opinion that there was not any prejudicial error committed. The respondent, who •was plaintiff below, has not made any appearance in this court or furnished any brief. We are therefore unable to know what his purpose was in introducing this conversation in evidence. It occurred many months after the injury and at a time when, according to plaintiff’s own testimony, he was in the employ of the defendant company. In view of these facts, we are absolutely unable to know what plaintiff meant by asking Rohan if he could do anything for plaintiff—for his foot. Assuming that the plaintiff was seeking compensation for his injury, the refusal of Rohan to respond does not in any manner reflect upon the question of defendants’ negligence or upon any of the defenses interposed. In the absence of any knowledge on our part of plaintiff’s purpose in introducing this conversation, we should say that the evidence was immaterial; but, beyond that, it appears to us to be of no consequence whatever, either in favor of the plaintiff or against the defendants. This is emphasized by the fact that, so far as the record discloses, Rohan did not know anything of the facts surrounding plaintiff’s injury at the time it occurred.
4. The action of the court in refusing to give instruction 13a above was clearly correct. Down to and including the word “make,” the instruction correctly states-the rule of law recognized everywhere; but the concluding clause is so far erroneous
Appellants cite, in support of their contention that the court erred in refusing to give the instruction, Russell Creek Coal Co. v. Wells, 96 Va. 416, 31 S. E. 614; but, instead of bearing out counsel’s contention, the decision in that case supports fully the doctrine we have just announced. The instruction considered in that case “told the jury that the plaintiff in this case was bound to exercise as much care in his own- behalf as the defendant was required to exercise in his behalf, and negligence on the part of the defendant did not excuse the plaintiff from a failure to exercise such care, if such failure was the cause of the accident.” By italicizing the last phrase of that instruction, we give emphasis to the view we have announced and the wide distinction between the instruction considered in that case and instruction 13a above, which was refused.
Complaint is made of the refusal of the trial court to give certain other requested instructions. The matters referred to in offered instructions 15a and 16a are fully covered in instructions given. In our view of the case, the questions of assumption of risk and the defense that, the injury to plaintiff was occasioned by an unavoidable accident were matters to be submitted to the jury under proper instructions. Without deciding, we doubt whether there was sufficient evidence of contributory negligence to justify the submission of that question; but, since it was submitted and resolved in plaintiff’s favor, defendants cannot complain.
The evidence does not justify the giving of instruction 14a requested; while offered instructions 17a and 21a are clearly
5. Plaintiff testified that as a result of his injury he was unable to work; but he was forced to tell that he went back into the employ of the defendant company in about two months after his injury, and received $3 per day wages. He testified to considerable profitable employment which he had had since his injury, and omitted any explanation of his failure to be at work at the time of the trial, except his general statement that he was unable to work. Dr. Kistler, who attended plaintiff at the time of his injury, stated that after he gave plaintiff’s foot the last treatment, which was about eight weeks after the injury, “the foot was permanently cured,” and, after examining plaintiff’s foot at the trial, said: “From its appearance and my examination of it just now, there is no occasion for him to have a limp at the knee, ankle, or foot.” In view of all this testimony, it seems to us that the verdict returned is excessive. We have no definite criterion by which to be governed in matters of this character, but feel disposed to say that a verdict for more than $3,000, under the circumstances presented here, would be excessive in our judgment.
The cause is remanded to the district court, with directions to grant a new trial, unless, within thirty days after the remittitur is filed in the district court, the plaintiff shall in writing consent that the amount of the judgment be reduced to $3,000. If such consent be given, the judgment will be modified accord