157 P. 955 | Mont. | 1916
a Judge of the First Judicial District, sitting in place of MR. JUSTICE SANNER, disqualified, delivered the opinion of the court.
On a former appeal in this cause (48 Mont. 427, 138 Pac. 499) this court affirmed the order granting a new trial. The following passage from the former opinion forms a pertinent introduction to a consideration of the questions presented on this appeal: “It appears that the plaintiff and other laborers were members of a wheel-press gang at defendant company’s shop in Miles City, and on April 4, 1912, were engaged in moving the drive-wheels of a locomotive from a track to a lathe, some thirty feet distant, for the purpose of truing up the wheels; that the wheels were very heavy, and it was necessary to block them in order to hold them stationary; that for this purpose they used short wooden blocks about two inches by six or eight inches, placed in front of and behind the wheels; that this blocking was required on account of the block or iron east between two or four of the spokes of each wheel, called a counterpoise or balance; and that defendant Feeley was in charge of the lathe. The testimony is conflicting as to whether or not the work of moving the wheels by the wheel-press gang on the occasion referred to was under the direction and supervision of defendant Feeley. ’ ’
After a careful examination of the evidence and the law applicable thereto, this court came to the conclusion that the only ground of negligence that found support in the evidence was the careless and negligent removal of the block of wood from its position in front of the wheel. It was further' held that under the evidence the question whether the defendant Feeley was a fellow-servant of the plaintiff or was a vice-principal of the defendant company should have been submitted to the jury under proper instructions.
The second trial was upon the same pleadings. The evidence
Assignments Nos. 2 and 3 relate to the refusal of the court to permit appellants to show, upon the cross-examination of the
Nor did the court err in refusing to admit in evidence rule
Error is predicated upon instructions 4, 17, 18, 19, 20 and 24 as given. While the giving of these instructions was not prejudicial, we note some of the objections urged: Instruction No. 17
Under the law of this case as declared by this court on the former appeal, instructions Nos. 18, 19 and 20, which submitted to the jury the question of the negligence of the company in removing the block from its position in front of the wheel, and the question whether or not Feeley was a vice-principal, were proper.
Instruction No. 24, the giving of which is urged as error, is
Nor do we find that the court committed error in refusing the instructions requested by defendants. In the main, they were covered by those given. The others were incorrect in point of law or inapplicable to the issues as this court declared them to be on the first appeal.
We find no prejudicial error in the record.
The judgment and order are affirmed.
Affirmed.