Lancaster v. Keebler

LEVY, J. (after stating the facts as above). [1-4] The evidence showed that the appellee was operating an emery wheel without a guard or shield on it, and that the guard or shield was a necessary part of the wheel. The court’s charge required of the jury, before they could return a verdict for the plaintiff, to find as a fact: (1) That the failure to equip the wheel with a guard or shield was, under all the evidence, negligence; and (2) that the negligent failure to have the guard on the wheel was the proximate cause of plaintiff’s being injured. The evidence presented these issues. And any question in the evidence as to whether or not the plaintiff was guilty of contributory' negligence, or whether the plaintiff would have been injured solely through his own negligence even though the wheel had been equipped with a guard, was, we think, sufficiently submitted in the court’s main charge. The special charges were substantially covered by the main charge. Therefore we think that the refusal to give the several special charges requested does not constitute reversible error. The verdict as to amount is not excessive considering the seriousness of the injury. The first assigned error is based on the refusal to peremptorily instruct a verdict in favor of the receiver upon the ground that the liability is, and consequently the judgment should be, against only the! Director General of Railroads. The assignment is overruled. Lavalle v. Ry. Co. (Minn.) 172 N. W. 918; Ry. *1119 Co. v. Steele, 180 Ky. 290, 202 S. W. 878; Johnson v. McAdoo (D. C.) 257 Fed. 757. The cross-assignment of error by appellee is overruled. The judgment is affirmed.