237 F. 185 | 5th Cir. | 1916
Fred C. Eastham brought suit against the United States Cast Iron Pipe & Foundry Company to' recover for personal injuries suffered by him in defendant’s manufacturing plant in the city of Bessemer, Ala. The case was tried upon two counts in the plaintiff’s declaration, A and D.
Count A alleges plaintiff’s employment, and that while engaged in the discharge of his duties his arm was caught in or by a belt which was running over a pulley, and he was thereby injured, and that said injuries were proximately caused by reason of a defect in the condition of the ways, works, machinery, or plant, in that said belt was defective and dangerous. Count D alleged that said injuries were caused by the negligence of a person to whom superintendence had been intrusted, to wit, Ike Jones.
To these counts the defendant interposed sundry defenses, the first “not guilty” and the others contributory negligence of the plaintiff in various ways.
“Now the other respect in which Jones is charged with negligence by the plaintiff is that he permitted the work to be conducted in the absence of a belt shifter; that is, as I understand it, an appliance by which the plaintiff could have shifted the belt from the ground, instead of standing on the platform or brace and doing the work in close contact with the belt.”
And, after giving the law governing the duty of the master to the employe, the court continued:
“If you are satisfied that a reasonably prudent employer should have used a belt shifter, and would have adopted the use of a belt shifter, then this defendant would have been negligent in failing to do so.”
The defendant requested in writing the following charge, which was refused, and exception seasonably noted to such refusal:
“If you believe the evidence in this case, you cannot predicate any negligence against the defendant’s superintendent, Jones, on account of the absence of a belt shifter to shift the belt which the plaintiff was shifting at the time of his injury.”
This charge should have been given. The trial court under its charge submitted to the jury to find whether it was negligence on the part of the employer not to have the belt shifter, when all the evidence
“The court charges the jury that, if you believe the evidence in this case, in the event you find for the plaintiff, you cannot award him more than nominal damages for decreased earning capacity on account of his alleged injuries.”
The court in its general charge covered fully the elements of damage the plaintiff was entitled to recover for his injuries, but did not instruct them that he was entitled to recover for a decreased earning capacity due to the injury. At the conclusion of the court’s general charge the plaintiff requested the following charge, which was given, to wit:
“I charge you that if you believe from all the evidence that the defendant is shown to be liable to plaintiff on any count in the complaint, you should find a verdict for plaintiff and assess damages sufficient to compensate plaintiff for suffering and injury and loss of wages and all such damages claimed as you find from the evidence plaintiff has suffered from the injury.”
Each of the counts alleged that the injuries had permanently rendered the plaintiff less able to work and earn money. The evidence of plaintiff’s witness Dr. Waldorf was to. the effect that 12 months from the time of the trial would elapse before the plaintiff would recover the full use of his arm. The testimony further showed by an exhibition to the jury by plaintiff that he had only a partial use of the arm. Necessarily, under this testimony, the plaintiff would be unable to earn full wages on account of his disability for 12 months after the trial, if the jury believed the evidence. There was no evidence tending to show to what extent this .disability would decrease the earning capacity of the plaintiff.
The court in its general charge had fully -covered the element of damages for loss of wages up to the time of the trial, and the only effect of giving the charge requested was to call the attention of the jury particularly to the damages claimed by plaintiff which the evidence showed he had suffered, by reason of the injury. In this condition, unless the jury’s attention had been called to the fact that it could not assess substantial damages for the decreased earning, capacity shown
The defendant was entitled to have the jury instructed on this point; its request for such instruction was refused, and error thereby committed.
The judgment appealed from is therefore reversed, and the case remanded for a new trial.