200 Mich. 291 | Mich. | 1918
(after stating the facts). In this court, in addition to the four reasons for a directed verdict which may be considered together, defendant urges as ground for reversal alleged errors in the admission and exclusion of testimony; alleged errors based upon the conduct and language of the court in the progress of the trial; and alleged errors in the charge of the court.
We will first examine the assignment of error based upon the refusal of the court to direct a verdict in favor of the defendant upon the ground that at the time of the accident, plaintiff was acting without the scope of his employment and for his own pleasure and convenience. It is strenuously urged on behalf of the defendant that plaintiff’s own testimony as to his reasons for mounting the ladder, “to help him, if he needed any help, to help him; otherwise to see how far it was before we get done,” is a plain admission that his purpose was one of curiosity merely and was not inspired in a natural way by a desire to serve
“He must prove that,at the time he went up that ladder he was still a servant of the defendant, and that in going up there he was about the defendant’s work, and that he was authorized by the terms of his employment to so go up that ladder and for the purpose that he did ascend it. * * *
“If the plaintiff of his own volition was occupying the position that he did occupy upon this ladder merely for his own convenience and accommodation, or out of mere curiosity on his part, then he would not be entitled to recover. * * *
“A,nd again, if you should find that the plaintiff at the time he was injured had quit the work assigned to him by the defendant, and voluntarily undertook to do*297 work about which he had no duties to perform, by virtue of the contractual relations existing between him and the defendant, then while such condition exists the duty growing out of that relation, of using care by the defendant for plaintiff’s safety, does not rest upon the defendant. * * *
“If you find that the plaintiff was not' authorized, either expressly or impliedly, to go up that ladder as he did go; that if in going up there he was not in the, performance of his duty toward the defendant and in the service of the defendant, then he would not be entitled to recover.”
The rule, as stated in 4 Labatt’s Master and Servant (2d Ed.), § 1566, is as follows:.
“The question whether the injured person was acting in the course of his employment is for the jury, where the evidence is conflicting, or where a difference of opinion may reasonably be entertained with regard to the proper inference to be drawn from the testimony.”
See, also, 26 Cyc. pp. 1461, 1462, and cases cited in note 36, and see 4 Thompson on Negligence, § 3753, and cases cited.
After a careful consideration of all the authorities cited we have reached the conclusion that the question whether or not at the moment of injury the plaintiff was acting within the scope of his employment was one for the jury and that it was properly submitted.
Error is assigned upon the action of the court in permitting the plaintiff to give his reasons for climbing the ladder on the ground that such testimony was self-serving. We think the evidence competent and its weight for the jury.
Other assignments relate to the admission or exclusion of testimony, but we find no reversible error therein.
In discussing the measure of damages, the court permitted the jury to consider the question of the de
“Plaintiff’s own testimony established the fact that since the accident and at the time of the trial he was earning as much as before the injury and also that he had returned to an identical job at the same wages as he had worked at before the injury.”
On behalf of the plaintiff it is pointed out that wages had gone up between the time of the accident and the time of the subsequent employment; that his injury made it necessary for him to do lighter work and that the undisputed testimony of Dr. Webb shows that the injury was of a permanent character and impaired plaintiff permanently. We think this element of damage was properly submitted to the jury.
Finally a reversal of the case is sought upon the ground that the trial judge indulged in improper conduct and language in the course of the trial. In denying a motion for a directed verdict the court said:
“He could not delegate the putting in of these to some of his employees and escape the liability for that neglect, to have that ladder properly built. The only wonder is others were not injured before the plaintiff here was injured.”
This language, if used in the presence of the jury, would doubtless be open to serious objection, but it was not so delivered and therefore must have been without prejudice to the defendant. Two or three other episodes occurring in the examination of witnesses are cited to show that the court was prejudiced, and that such prejudice worked to the detriment of the defendant. While we have frequently held that conduct or language on the part of the trial judge indicating the bent of his mind constitutes reversible error, Schwanz v. Wujek, 163 Mich. 492, and Jageriskey v. Railway, 163 Mich. 631, we are yet of opinion after a careful perusal of this record that the rights of the
The judgment is affirmed.
