Yeager v. South Dakota Central Railway Co.

140 N.W. 690 | S.D. | 1913

WHITING, P. J.

Plaintiff brought this action seeking to recover damages claimed to have been suffered by him from injuries received while he was in the employ of defendant as locomotive engineer in charge of one of the engines running on defendant’s road. Pie alleged that one of his duties as such engineer was to light the headlight upon the engine, and that, while engaged in lighting -such headlight, and in order for him to be in a position to light the light, it was necessary to take hold of and -to support -himself in part by a handhold attached to the headlight cage. Plaintiff further alleged that the headlight cage was old, rotten, rusted, unsafe, and defective, all of which could have been, and should have been, known to defendant through the exercise of ordinary care and diligence, and was known to defendant, but unknown to plaintiff; that while attempting to light said headlight lamp, that portion of the headlight cage to which the handhold was attached, by reason of its rusted, unsafe, and defective condition, broke and gave way, allowing and causing plaintiff to- fall and receive the injuries of which he complains, all of which was without fault or negligence on the part -of plaintiff. Trial was had and a verdict returned in favor of the plaintiff. Judgment was entered upon such verdict, a -motion for new trial denied, and from such judgment and order denying a new trial this appeal is taken.

The appellant assigns several alleged errors of 'the trial court in its rulings upon the admission and rejection of testimony, in its refusal to give certain requested instructions, in its refusal to direct a verdict, in its refusal to submit certain special findings to the jury, and in its refusal to grant a new trial. •

That there were no reversible errors in the court’s rulings upon the admission and rejection of evidence is perfectly clear, and the assignments based upon such rulings raise no legal propositions of sufficient importance to justify any review thereof in this opinion.

[1] The defendant was not entitled to a directed verdict, (i) because the evidence was such that the court could not rightfully do else than submit the issues of fact to the jury; (2) because, in its motion for a directed verdict, the defendant did not specify the particulars wherein the evidence was claimed to be insufficient to support plaintiff’s alleged cause of action. Nichols & Shepard Co. v. Marshall, 28 S. D. 182, 132 N. W. 791; Howie v. Bratrud, 14 S. D. 648, 86 N. W. 747.

[2] Whether the trial court should submit special findings to the jury was a matter which, under the statute of this state, was within its judicial discretion; there is nothing in the nature of this case, nor in the evidence that was received, that rendered it difficult for the jury to apply the law given to the facts found, and thus intelligently render a general verdict.

[3,4] While the instructions asked for by the appellant may have stated correctly propositions of law applicable to facte which thé evidence, in part at least, tended to support, yet the defense was in no manner prejudiced by the court’s refusal to give the same, for the reason that the instructions given by the court, upon its own motion, covered fully ever}? possible phase of the case, and these instructions were not excepted to. The court’s instructions covered the substance of every instruction asked for by appellant, save and except the following, found as a part of requested instruction C: “Now, I say to you that the defendant in this case had a right to conduct and equip its locomotives with such headlights, headlight cages, steps, handholds, and appliances as it may see fit, or it may omit the same altogether.” To this was coupled a proposed instruction, to the effect that such appliances as were furnished must be “sufficiently strong and reasonably safe to withstand the uses to which they are intended to be placed.” The question before the jury was not whether such appliances as defendant had placed upon this engine were, if in good condition, proper and fit and such as it had a right to put thereon, if defendant wished; the sole question was whether or not the applianees which it had seen fit to put upon the engine were in a fit and safe condition, or whether, through the neglect of the defendant, they had been allowed to get into a dangerous and unsafe condition. This question was fairly submitted to the jury under the instructions given.

For all the reasons above stated, the trial court did not err in refusing a new trial.

The judgment and order appealed from are affirmed.