Warner v. De Armond

89 P. 373 | Or. | 1907

Lead Opinion

Mr. Chief Justice Bean

delivered the opinion.

1. There was no error in sustaining the demurrer to the plea in abatement. This is an action for tort, and in such cases partners are liable jointly and severally. ' The injured party may, at his election, proceed against all or such a number of the partners as he may choose, and it is no defense that other partners are not joined, or that persons not partners have been made defendants: Burdick, Partnership (2 ed.), 266; Story, Partnership, § 167; Pomeroy, Code Rem. (4 ed.), § 208; Roberts v. Johnson, 68 N. Y. 613; Mode v. Penland, 93 N. C. 292.

2. It is claimed that the court erred in overruling a motion for nonsuit based on the contention that it appears from the complaint and the evidence that it was such contributory negligence in the plaintiff to attempt to replace the belt while the pulley was in motion as will preclude a recovery. The evidence tended to show that defendants were preparing to start their mill for the season’s work and employed the plaintiff, who is an experienced millwright, to do some repairing in and about the-mill carriage, and temporarily to assist generally in getting the mill in running order and to work until permanent places should be assigned to the various employes. After the repairs for which he was employed were completed, the mill was started, and plaintiff assisted by direction of the defendants in operating the edger, cut-off saw', removing slabs and the like, and “worked around generally,” but was not assigned to any particular work. While he was so employed the belt which furnished the power for the cut-off saw slipped from the pulley, and he attempted to put it on, which he “could have done very easy” if the pulley had been a smooth one. His clothing caught on the projecting bolts, and his arm was drawn under the belt and tom from the body. The pulley was what is known as a wooden split-pulley, each half being made of three pieces of wood nailed or otherwise fastened together, and having fastened thereon a wooden shoulder through which run bolts to- clamp the halves-together and hold the pulley on the shaft. The bolts were not countersunk, but the ends were allowed to project such a distance from the shoulder that clothing or any like substance coming in contact with them while the pulley was revolving washable to be caught and wound around the shaft. When the-pulley was in operation these bolts were not visible, and plaintiff liad no knowledge of their existence, nor had he been warned of the dangerous or defective condition of the pulley. The-plaintiff testified that it ivas not usual in constructing such pulleys to- leave the ends of the bolts so projecting, that it was customary and proper in mills of that character to replace belts-on revolving pulleys of the kind and character referred to, and that there was no particular danger in doing so if the pulley was properly constructed. There was, therefore, evidence tending to show that the pulley in question was negligently constructed and operated by defendants, that plaintiff had no knowledge or information of its defective condition, that at the time-of his injury he was in the discharge of the duties usually required and expected of an employe in his situation, and that he did not act heedlessly or recklessly in attempting to replace the belt. Much of this evidence is contradicted and disputed by the defendants, but its weight was for the jury, and there was no error in overruling the motion for a nonsuit.

3. Upon the trial the plaintiff was allowed to testify, over defendants’ objection, that he had a family consisting of a wife and four children, the eldest of whom was 12 years of age and the youngest 2. This evidence had no legitimate bearing upon the issue to be tried, was calculated to arouse the sympathy of the jury and unduly increase the damages, and was, therefore, irrelevant and incompetent. The damages for a personal injury must be only such as the plaintiff himself has sustained and in law is not dependent in the slightest upon his domestic relations or the size of his family: Pennsylvania Co. v. Roy, 102 U. S. 451 (2(1 L. ed. 141); Louisville & N. Ry. Co. v. Binion, 107 Ala. 645 (18 South. 75) ; Pittsburg, etc., Ry. Co. v. Powers, 74 Ill. 341; Kansas Pac. Ry. co. v. Pointer, 9 Kan. 620; Stephens v. Hannibal & St. Jo. Ry. Co. 96 Mo. 207 (9 S. W. 589: 9 Am. St. Rep. 336). In ruling upon the objection to the testimony, the court said that it did not think plaintiff “could recover anything by reason of his having a family, that is, having a wife and family, he could recover nothing in' their behalf,” hut the evidence was competent as showing the conditions surrounding the plaintiff which might affect his mental feelings. Xo further allusion seems to have been made to this testimony. It was not withdrawn from the consideration of the jury, nor were they instructed to disregard it in estimating the damages, if any, to which plaintiff was entitled, and we do not think this court can say that the error in its admission was harmless, nor that it did not affect the amount of the recovery.

For its admission, the judgment of the court below must be reversed, and a new trial ordered. Reversed.

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Rehearing

Decided 23 July, 1907.

On Motion eor Rehearing.

Pee Curiam.

In view of another trial, appellant has filed a petition asking the court to pass upon the sufficiency of the complaint and certain alleged errors based upon the rejection of testimony and the refusal to give requested instructions.

The objection that the complaint does not state facts sufficient to constitute a cause of action, because it shows on its face that the accident to the plaintiff was caused by his contributory negligence, is disposed of by what is said in the opinion on the motion for a nonsuit, and need not further be elaborated.

4. Testimony that the pulley which caused the injury to the plaintiff was such as is commonly and ordinarily used in sawmills of the character operated by defendants was competent. Ah employer who uses machinery which is in common use in the line of business in which he is engaged is not liable for an accident caused thereby to an employe, which might have been prevented by the use of different machinery, in the absence of a statute providing the 'kind and character of machinery to be used or regulating the use thereof: Huntley v. Inman, 42 Or. 334 (70 Pac. 529: 59 L. R. A. 785); Hoffman v. American Foundry Co. 18 Wash. 287 (51 Pac. 385).

The material parts of the instructions refused were, it seems to us, embodied in the charge as given.

Reversed: Rehearing Denied.