Western Union Tel. Co. v. Burgess, 108 F. 26

108 F. 26 | 6th Cir. | 1901

CLARK, District Judge,

after stating the case, delivered the opinion of the court.

We do not deem it necessary to discuss in detail and separately each of the various errors assigned. We shall consider briefly only those chiefly relied on in the argument at bar, and ■which seem to us sufficiently serious to require separate and special treatment.

In regard to the seventeen errors assigned to the court’s action in the admission and rejection of evidence, it is sufficient to say that in only two or three of these were the exceptions specific in stating the ground of the objection, and the assignments of error could not, for this reason, be-sustained. Toplitz v. ILedden, 146 U. S. 252, 13 Sup. Ct. 70, 36 L. Ed. 961; Railroad Co. v. Hellenthal, 31 C. C. A. 414, 88 Fed. 116, and cases there cited.

Such of the objections as were sufficiently specific are, in our opinion, not well taken. Indeed, we do not regard any of the exceptions taken to the rulings in relation to the evidence as tenable, apart from the difficulty that they are not sufficiently specific to put the court in error in overruling the objections. In support of the error assigned .on the ruling of the court in refusing to direct a verdict in favor of the defendant it is urged, first, that the foreman and defendant in' error sustained to each other the relation of fellow servants, and that ■there is no liability on the part of the master for an injury to the defendant in error caused by negligence, ip any respect, of his fellow servant. It is not to be doubted, and is conceded, (.hat, as a general proposition, the relation between the foreman and the servants at work under ills orders and directions are fellow servants, and the general rule of nonliability of the master is not controverted. Where, however, the negligence of the foreman is in the failure to discharge one of those positive duties which the master owes to the servant, and which cannot be delegated, the rale of nonliability is inapplicable, and the master is responsible for the foreman’s failure to discharge this positive duty. The case in this respect is undistinguishable from Felton v. Girardy, 43 C. C. A. 439, 104 Fed. 127; Railroad Co. v. Miller, 43 C. C. A. 436, 104 Fed. 124, recently decided by this court. It is sufficient to refer to those cases, where (lie subject will he found discussed, and the distinction involved pointed out, aud it is unnecessary to restate the doctrine for the purposes of this case.

Much of the argument at bar and in the brief was and is devoted to an effort to show that the defendant in error was guilty of such contributory negligence as defeated his right to recover, if otherwise made out. The contention is that it was negligent in the servant to climb the pole, without any inspection as to its soundness, a distance of 40 feet, and take hold of it with one hand above the saw, and then proceed to cut off the section in that position. In answer to this we remark that the record does not disclose that any question of contributory negligence of the defendant in error was urged or presented on tiie trial in the court below, unless the motion to direct a verdict for defendant must be regarded as distinctly raising that point. No specific instruction was requested in that regard, and no distinct ruling had, or exception taken or reserved. Railroad Co. v. Ives, 144 U. S. 409, 12 Sup. Ct. 679, 36 L. Ed. 485; Columbus Const. Co. v. Crane Co., 40 C. C. A. 35, 98 Fed. 946. Under such circumstances it will admit of serious doubt whether such question is presented for consideration or review' by this court. Conceding, how'ever, hut not deciding, that a general motion to direct a verdict upon the whole record, without stating the specific grounds of the motion, is sufficient to raise the question of contributory negligence, we conclude, on the evidence disclosed in this record, that this was an issue of fact, which, like the question of negligence, was proper for the consideration of the jury. It will appear from the statement of the case that there was some evidence tending to show that the defendant in error was an inexperienced servant, and was changed from the work to which he had become accustomed, and set at work which involved greater danger, without any warning or instruction as to the safest mode; of doing the new work. Under such circumstances, and in this state of the case, we think the question of contributory negligence was a question of fact for the jury to determine. In view-of such a state of the case, if (he jury should find that the defendant in error was not sufficiently experienced to enable him to do the new work, and that he was neither warned nor instructed as to the proper mode of doing the work, we conclude that it could not be said as matter of law that the servant was guilty of contributory negligence in not making an inspection of the pole for himself, and in the particular method adopted of sawing off the section of the pole. It could not be said, upon the facts of this case, that defendant in error was guilty of negligence as matter of law if he supposed the pole was sound, and that he might safely do the work as it was done. If the pole was regarded, upon reasonable ground, as sound, it could not be said that the method of sawing, up to the time the section broke off and fell, was an obvious danger to an inexperienced servant without instruction or warning.

The exceptions to the court’s instructions on which the nineteenth, twentieth, twenty-first, twenty-second,* and twenty-third errors are assigned, only raised and sought to raise the same general objection as was presented .by the motion to direct a verdict for the defendant. In support of these general assignments it is said:

‘‘All of tliese propositions as charged by the court were erroneous, and misleading; to the jury. We have shown both from the admissions in the pleadings and the evidence that the plaintiff knew of the special risk of the work. We have further shown, an'd the court charged the jury, that it was the duty of the plaintiff to inspect the pole for himself to see whether it was a safe one for him to work at; or, on the other hand, if its unsafe condition was latent, that he took the risk upon himself.”

In relation to tliese assignments we need only say that we think they relate to questions of fact, which were properly submitted to the jury for determination, and the point at issue .is substantially .the same as the general question involved in the motion to direct the verdict, and is disposed of in what was said in relation to that question and the cases cited.

The twenty-fourth assignment of error presents objection to the court’s refusal to give in charge the following request, made by the plaintiff in error:

“When the plaintiff accepted the employment of the defendant as a lineman, lie held himself out as competent to discharge all of its duties in the line of his work as such lineman, and cannot now he heard to complain on account of having received an injury while in the line of his duty.”

This request was clearly, unsound, and properly refused, as will appear by referring again to Railroad Co. v. Miller and Felton v. Gir-ardy.

It is finally assigned as error (twenty-fifth assignment) that the court refused to permit the jury to take with them on their retirement the written charge, in accordance with section 5190 of the Code of Ohio, which provides: ,

“And all written charges and instructions shall he taken by the jurors in their retirement, and returned with their verdict into court, and shall remain on file with the papers in the case.”

The contention is that under section 914 of the Revised Statutes of the United States this rule of practice prescribed for the state courts of Ohio was applicable to this court. It is settled, however, that a provision like that found in the Ohio Code of Practice does not control proceedings in the circuit courts of the United States sitting in that state, and the objection is consequently not well taken. St. Clair v. U. S., 154 U. S. 134, 14 Sup. Ct. 1002, 38 L. Ed. 936; Nudd v. Burrows, 91 U. S. 439, 23 L. Ed. 286. See, also, Railroad Co. v. Horst, 93 U. S. 291, 23 L. Ed. 898; In re Chateaugav Ore & Iron Co., 128 U. S. 544, 9 Sup. Ct. 150, 32 L. Ed. 508; City of Lincoln v. Rower, 151 U. S. 436, 14 Sup. Ct. 387, 38 L. Ed. 224; Shepard v. Adams, 168 U. S. 618, 18 Sup. Ct. 214, 42 L. Ed. 602,—where this general subject will be found considered and ¡he cast's reviewed.

The twenty-sixth error assigned is to the court’s denial of motion in arrest oí judgment, and is clearly not tenable; and the twenty-seventh assignment only seeks to raise in different form the main question presented and necessarily involved in the consideration and disposition made of that question, and does not seem to require separate discussion.

What is thus said concludes such discussion as we think the various errors assigned require, with the result that we do not regard any of them as well taken. Judgment affirmed.