Conover v. Neher-Ross Co.

Hadley, J. This is an action to recover damages for injuries received in the defendant’s shingle mill. The plaintiff was caught by a saw, and his left arm was cut off a few inches above the wrist. The negligence charged to the defendant was the use of defective machinery, and the employment of an incompetent engineer. The first ground was eliminated at the trial, and the case rested upon the charge of employing an incompetent engineer. The defendant pleaded contributory negligence, assumption of the risk, and negligence of a fellow servant. Thq cause was tried before a jury and a verdict was returned for plaintiff in the sum of $1,500. The defendant has appealed. A number of assigned errors involve the single question of the sufficiency of the complaint. These include rulings upon the demurrer to the complaint, upon objection to the introduction of any testimony, upon the motion for non-suit, and upon certain instructions. It is urged that the complaint does not make any general charge of incompetency against the engineei*, but is confined to allegations as to- two specific acts of negligence-. The complaint contains the averment that appellant was negligent in the- employment of a proper person to attend to the duties of engineer, in that it employed an old man, . . who was careless and negligent and incompetent in the discharge of his duties as engineer, by not giving the warning signals when starting the engine; that plaintiff had no knowledge of the negligence and carelessness and incompetence of the engineer, but which was known to defendant, yet defendant retained him in its employment as such engineer; that the times when the engineer negligently and carelessly started the engine, prior to the injuries hereinafter complained of, without giving the proper signals, as above alleged, are as follows: On or — 175 — about the 21st day of January, and in the latter part of February, 1903.” "While the language employed in the pleading is not as comprehensive as it might have been, yet we think the first part of the averment amounts to a general charge of incompetency and that what follows is in the nature of a specification of some facts in support thereof. It is also alleged, that there were certain established oral rules governing the giving of signals for starting and stopping the machinery of the mill; that, under the rules, the engineer was required to- ring two' bells as warning signals that the machinery was about h> be started; that, at the time, of the accident, the respondent was in the act of oiling the machinery, when, without ringing the warning bell, the engineer caused the engine to start, and respondent’s clothing was caught by the moving machinery, and he was thereby thrown against the moving saw, which caused his injury. We think, as against demurrer, the complaint sufficiently charges negligence against appellant by way of knowingly continuing .in its employ an incompetent engineer. The demurrer was, therefore, properly overruled. For the same reasons it was not error to' admit testimony in support of the complaint. It was also proper to deny the motion for nonsuit, and to give the instructions criticized, when those questions are considered with reference to the sufficiency of the complaint alone. It is urged that it was error to' admit evidence of prior specific acts of negligence on the part of the engineer. Such proof certainly bore upon the question of general incompetence, and was proper for that purpose. In Holland v. Southern Pac. R. Co., 100 Cal. 240, 34 Pac. 666, cited by appellant, the court observed that “the manner in which a specific act is performed may conclusively show the utter incompetency of the actor, and his inability to — 176 — perform a particular service.” It is true the court further said, in substance, that a single act of casual neglect does not per sa tend to prove that one is unfitted for a position requiring care and prudence, and that character is exhibited not by a single act but by a series of acts. Evidence as to the single act was held insufficient in the case. Adopting the reasoning of the court, however, it follows that evidence as to a series of acts cannot be had except by reference to the specific ones which together constitute the series. In the case at bar, an effort was made to show two prior acts of the engineer of the kind alleged in the complaint, and we think it should not be said, as a matter of law, that two such acts do not constitute a series bearing directly upon the question of general incompetency. The evidence was competent in connection with further testimony that appellant was informed of these specific acts. That evidence of such specific acts is competent was held by this court in Green v. Western American Co., 30 Wash. 87, 70 Pac. 310. Respondent cites many other cases upon this point, but we shall not cite them here', inasmuch as the question has already been decided by this court. Appellant seeks to distinguish Green v. Western American Co. from the case at bar, under the claim that general incompetency was alleged in the former case, and was not alleged in the one now before us. We have already said, however, that we think general incompeteney is alleged here. It is next assigned that the court erred in sustaining the objection to the introduction of appellant’s time book in evidence. A witness for respondent had testified that he was working for appellant in the latter part of February, 1903, and that, while so employed, the engineer, upon one occasion, failed to give the signal before starting the engine. The appellant attempted to show by its time book — 177 — that the witness was not in its employ at the time of which! he testified. Bnt the court excluded the book. Appellant urges this claim of error, upon the general ground that books of account are admissible in evidence in one’s own favor. The rule is, however, not without limitations. The trial court excluded the book on the theory that it was not shown to be the best evidence. Appellant’s officers, who, it was shown, had charge of the employment of the men, had testified, and they were not asked as to whether the witness was in their employ at the time mentioned. It was the court’s view that their knowledge upon the subject was the primary evidence, and it had not appeared that they were unable to testify as to the fact “As has already been stated, the principal ground upon which books of account are admitted in evidence is the necessity of the case, inasmuch as such books are frequently the only obtainable evidence of the subject-matter' in controversy. But when better evidence can be furnished, this necessity does not exist, and hence a book of accounts is not admissible as evidence of items entered therein when it appears from the testimony of the parties or the nature of the transaction that more satisfactory evidence exists.” 9 Am. & Eng. Ency. Law (2d ed.), 929. The above statement of the law sustains the trial court’s view. A time book offered for a similar purpose was excluded in Morse v. Potter, 4 Gray 292. The court observed in that case that: “A time book, kept in a tabular form, and in which charges for labor are intelligibly indicated, has been held admissible in evidence, with the party’s suppletory oath. Mathes v. Robinson, 8 Met. 269, 41 Am. Dec. 505. But the book that was offered in evidence in the present case was not a book of that kind. It was a book of credits, and not of charges, and was offered for the purpose of proving, by the defendant’s omission to give credit for certain days’ work, that the plaiutiff did not work on those days. It was clearly inadmissible.” — 178 — Within the authorities cited, the court did not err in rejecting the time hook. It is argued that the court permitted evidence as to self-serving declarations of respondent. Appellant had introduced evidence to the effect that respondent said, soon after the accident, that it occurred through his own fault and carelessness. In rebuttal, respondent produced two witnesses who* were permitted, over objection, to testify as to statements made by respondent. The undoubted theory which appellant sought to impress upon the jury was that respondent’s testimony at the trial was a recent fabrication. The testimony it had offered would naturally lead to that belief in the minds of the jury. The two witnesses, whose testimony is now criticized, testified in rebuttal as to statements made by respondent at the surgeon’s office, soon after the accident. Whether the statements made under the influence of suffering, .so soon after the injury, were a part of the res gestae is not discussed by respondent, but, if they were not, we believe the testimony came within the rule discussed in State v. Manville, 8 Wash. 523, 36 Pac. 470, which is to the effect that, when testimony is assailed as a fabrication of recent date, the imputation may be repelled by proof of the antecedent declarations of the party. The testimony was properly admitted. Errors are assigned upon the instructions given, and upon the refusal to give requested ones. We believe, however, that the law governing the case was fairly stated to the jury, and we find no error in that regard. Misconduct of the jury is urged upon the motion for new trial. It is claimed that the verdict was reached by the quotient ^process. It appears that, after it had been determined to return a verdict for respondent, it was proposed that each juror should write upon a piece of paper — 179 — the amount which he favored for the verdict, and that the aggregate should be divided by the number of votes cast. This was done, and the result was $1,370. It does not appear that there was any agreement in advance to be bound by the result, or by this plan of arriving at the sense of the jury as to the amount. Moreover, the result was not adopted and, after three additional ballots, the sum of $1,500 was found and returned. The case is within the rule of Bell v. Butler, 34 Wash. 131, 75 Pac. 130, and cases there cited. It was not error to deny the motion for new trial. The judgment is affirmed. Mount, C. -J., Fullerton, and Dunbar, JJ., concur. Rudkin, Boot, and Crow, JJ., took no part.