40 Wash. 289 | Wash. | 1905
The respondent, a young man, twenty-four years old, had the tips of his fingers caught iu a roller crusher in a brick factory, which was owned and operated by the appellant, in Spokane county. His left arm was drawn through the roller crusher, badly breaking and mangling it, and tearing the ligaments so that the arm had to be amputated; also, mangling his shoulder to a certain extent, where the crusher stopped. The complaint alleged negligence on the part of the defendant, iu that it furnished the plaintiff with defective machinery to work with, and that it failed to give the notice of the starting of the engine which set iu motion the machine, which the plaintiff was oiling, so that he could have time to escape the dangerous cog wheels which were the cause of his injury ; alleged that the defendant had adopted a rule of warning, which the plaintiff relied upon, and that said warning was not given him on the morning on which the accident occurred. Hpou the trial of the causey on the completion of the plaintiff’s testimony, defendant moved for a nonsuit; which motion was refused by the court. Again, at the
The errors assigned are, (1) the refusal of the court to grant defendant’s motion made at the end of plaintiff’s case; (2) the failure of the court to grant defendant’s motion made after all the testimony was in; (3) the failure of the court to grant defendant’s motion for a new trial; (4) error of the court in refusing to give instruction No. 1, requested by the defendant, said instruction being that the jury return a verdict for the defendant. When the case was submitted to the jury, the court, for reasons which do not appear in the record, withdrew from the jury the question of defective machinery. This order of the court was excepted to by the plaintiff, but as the plaintiff has not ap>pealed, the judgment having been in his favor, it is not necessary for us to pass any opinion on the correctness of such order.
Most of the assignments of error can be noticed together, as they all practically involve the question whether or not the testimony showed negligence on the part of the appellant, or contributory negligence on the part of the respondent. It may be stated here that the appellant in its answer, outside of the ordinary denials of negligence and assertion of contributory negligence, alleged a settlement with the respondent, wherein the appellant was released from all liability on account of the accident. This was denied by the respondent, who alleged that, if such release had been executed, it had been executed at a time when he was unable to contract, by reason of his bodily suffering, and that it was a fraud perpetrated upon him by the appellant.
It is contended by the appellant that, by a rule and custom, it blew two small whistles a few minutes before the engine, which put the machinery of the factory in operation, com
On the proposition of the settlement, the testimony is absolutely conflicting. But if the statements of the respondent and his witnesses are true, the execution of the alleged release was the perpetration upon him of a most flagrant and palpable fraud. These questions having been submitted to the jury, under proper instructions, there being no assignment of erroneous instructions, and the testimony being sufficient, if uncontradicted, to sustain a judgment, this court will not undertake to weigh such testimony. If it did, it would simply be the substitution of the judgment of this court for the judgment of the jury on the weight of the testimony and the credibility of the witnesses, a substitution not authorized by the law.
‘here is, however, one assignment of error, the rightful determination of which will, we think, necessitate the reversal of this cause, and that is the alleged misconduct of
“How, as a matter of fact, sir, every dollar of that money was paid by other parties, the insurance company ? Answer: Ho, sir. Question: "Were you not insured? Mr. Danson [appellant’s counsel] : We object as immaterial. It is not a proper question and he knows it. The Court: Sustain the objection.”
Many more questions were asked by counsel for the respondent upon the same line, with relation to' settlements made by the company with one Albert Lutness, where the question was asked: “How, is it not a fact that every dollar in the Lutness suit was paid by the Casualty Company of Maryland, instead of by the Washington Brick & Lime Comípany?” This subject was pursued by counsel notwithstanding the continuous objections, and overruling of this character of questions by the court. It is earnestly contended by the respondent that the questions were asked for the purpose of impeaching the veracity of the witness Spear; that, inasmuch as he had said that he had paid it, they had a right to show that somebody else paid it. But we do not think there is any merit in this argument. The whole examination shows that it was made for the purpose of getting before the jury the fact that an insurance company, and not the local defendant in the case, would be called upon to respond to such damagesi as the jury assessed; and the case we think falls squarely within the spirit of the rule announced by this court in Iverson v. McDonnell, 36 Wash. 73, 78 Pac. 202; Lowsit v. Seattle Lumber Co., 38 Wash. 290, 80 Pac. 431; and Stratton v. Nichols Lumber Co., 39 Wash. 323, 81 Pac. 831.
Mount, C. J., Root, and Hadley, Jj'., concur.
Fullerton, J., took no part.