Conrad v. John W. Graham & Co.

Mount, J. The appellant was injured on December 31, 1903, by the explosion of a magazine lamp which he was at that time attempting to use for the purpose of making flashlight photographs. He alleged in his complaint, that on the afternoon of that day he sent a messenger to the respondent’s store to purchase a particular kind of flashlight chemical, and that there might be no mistake as to the character of the chemical, he wrote a description thereof on a card as follows: “Magnesium metal for Rex magazine lamp,” which card was handed to respondent’s clerk; that the respondent sold and sent to appellant another kind of chemical which was much more dangerous than the kind ordered, and that appellant or his agent was not informed of that fact; that by reason thereof appellant was severely injured. The respondent, by its answer, denied that it furnished flashlight chemicals of any kind to the appellant, or any one for him, and alleged that appellant’s injury was caused by his own negligence, and that he assumed all risk of using the chemicals which caused his injury. The case was tried to a jury, and a verdict was returned in favor of the respondent, and a judgment of dismissal followed. The appellant alleges that the court erred in instructing the jury as follows: “Or if you find that the plaintiff while handling such chemicals was under the influence of intoxicants or was thereby [643] prevented from using his senses and knowledge, that he was injured in consequence, and that he had such knowledge of such chemicals that if he had been sober and had exercised reasonable care he would not have handled the chemicals as he did and would not have been injured, the plaintiff could not recover.” It is argued that this instruction was error because there was not sufficient evidence to warrant an instruction upon the question of intoxication of the appellant, and, also, that the insti’uction emphasized the question of intoxication, and was not a true statement of the law. We think the instruction is not subject to these criticisms. There was evidence that the appellant had been drinking prior to the time of the accident. One of the defenses was that the appellant was himself negligent. It seems too plain for argument that if the jury found that the appellant was under the influence of intoxicants and in consequence thereof was injured, and if the jury found that had appellant been sober and used reasonable care he would not have handled the chemicals as he did and would not have been injured, he could not recover even if the respondent was negligent, and this is in substance what the jury were told. It may be that the mere fact of drunkenness was not sufficient to show contributory negligence. The court did not say to the jury it was, but said that if in consequence thereof the appellant was prevented from using his senses and was injured on that account he could not recover. This was without doubt a correct statement of the law. This is not in conflict with the rule in Lawson v. Seattle & Renton R. Co., 34 Wash. 500, 76 Pac. 71. The instruction was not ■erroneous. It is next claimed that the court erred in instructing the jury to the effect that, if they found that notice was given to the messenger sent by the respondent to purchase the chemical that such chemical furnished was not magnesium but another more dangerous chemical but would answer as well, such notice was notice to the appellant. It is argued that this instruction presupposes that notice was given to the [644] messenger that the article furnished was not the article ordered. We need not consider whether this instruction does presuppose such fact, because the fact was not a disputed one. It was assumed from the beginning of the case that the chemical furnished to Mr. Jauslan, who acted as messenger for the appellant, was not the article ordered, and Mr. Jauslan understood that fact and was told, “This will do the work.” The case was tried upon the theory that Mr. Jauslan was informed that the article he purchased was not the article he ordered. We think there can be no doubt that notice to Mr. Jauslan was notice to the appellant that the chemical delivered was not the chemical ordered. Fowler v. Randall, 99 Mo. 407, 73 S. W. 931, 17 Am. St. 580, and cases there cited. It is next claimed that the court erred in instructing the jury, “If you find that notice was given to Jauslan as I have already instructed you, and you further find that the chemical delivered to Jauslan was labeled cautioning that it be not used in a magazine lamp, and that the plaintiff saw and read, or if he had exercised reasonable care would have seen and read such caution, and notwithstanding such caution plaintiff nevertheless did use such chemical in a magazine lamp, and was injured in consequence thereof, he cannot recover from the defendant, and your verdict would be for defendant.” It is admitted that the appellant was an experienced man in photography with flashlight chemicals, and he knew that, only magnesium could be used in a magazine lamp such as, he was using, and he also knew that such packages were usually labeled. Under these circumstances the instruction was clearly right. It did not assume any disputed fact and was not a comment thereon, and was certainly within the issues of the case. It is argued that the court erred in refusing to give several instructions requested by the appellant. The record shows that the substance of all these instructions was given, and that is all that is required. Several errors are based on the [645] ruling of the court on the question of evidence during the trial. There is no merit in any of these assignments; they are not of sufficient importance to justify extended consideration. The trial of the case seems free from error, and upon a consideration of the whole case, we think the verdict of the jury was right. The judgment is therefore affirmed. Rudkin, C. J., Dunbar, Crow, and Parker, JJ., concur.