Schall v. Cole

Mr. Justice Sterrett delivered the opinion of the court October 6,1884. In submitting the questions of fact upon which the plaintiff’s right to recover depended, the learned judge so clearly and accurately defined the duties and obligations springing from the relation of the parties, that the jury could have no difficulty in properly applying the jH’ineiples thus explained to the facts of the case as established by the evidence. The jury in arriving at their verdict, must have found that the injuries complained of by plaintiff below resulted from the want of reasonable and proper care on the part of defendant or his authorized agents; and that plaintiff himself was not chargable with negligence contributing thereto. These controlling questions of fact, fairly raised by the testimony, were exclusively for the jury; and, inasmuch as the several propositions, in which they are presented by the respective parties, were answered by the court with substantial accuracy it is unnecessary to consider at length each of the specifications of error. The question of contributory negligence depended not on an admitted state of facts, but upon the facts and circumstances of the case as they might be found by the jury; and hence it was exclusively for their determination. They were so instructed in answer to plaintiff’s first point; and to that no exception has been taken. The question of defendant’s negligence depended mainly on the allegations of fact recited in plaintiff’s second, third [7] and fourth propositions. The last of these was properly qualified by the learned judge in his answer thereto, and also in his general charge; the others were rightly affirmed. In the third proposition, the court was requested to charge: “ If the jury find it was the duty of defendant to have placed a competent man in charge of the small engine ..... so as to have immediate control thereof in case of accident, and that the failure to place such person in charge of said engine was negligence on the part of defendant, it will then become.their further duty to find whether or not the injury to plaintiff was the natural and probable consequence of that negligence, and to ascertain by their verdict what was the proximate cause of the injury suffered by him.” The most essential features of plaintiff’s case are so fairly presented in this point that its unqualified affirmance is not even the subject of complaint. There was no error in so qualifying defendant’s second proposition as to require the jury to find the additional fact that plaintiff knew the engine was run as therein stated, and that he was also aware of the risk of so running it; nor was there any error in similarly qualifying defendant’s position as complained of in the ninth specification. Plaintiff had a right to assume that such precautions, as were reasonably necessary for the safety of himself and his fellow employees, were taken by their employer ; and, unless he knew, or as a prudent man should have known, not only the circumstances connected with the runniug of the small engine, but also the risk likely to result therefrom, he could not be precluded from claiming damages, if otherwise entitled to recover. Defendant’s fourth point was properly qualified by tbe court; and his fifth to eighth propositions, inclusive, were rightly refused. The circumstances recited in the fifth, sixth and seventh propositions were not such as to justify the binding instructions therein requested. The testimony tended to show that plaintiff unexpectedly found himself in a position of peril, caused by the breaking of the governor belt and the consequent “running away ” of the engine. If the jury found, as they doubtless did, that such was the case, and that it resulted not from any default of the plaintiff himself, but from the negligence of defendant, it would have been most unreasonable to bold plaintiff to the exercise of such deliberate judgment as should have controlled bis action under other circumstances. That his position was one of imminent danger, in which there was no time for reflection, is clearly shown by the fact that other employees were fleeing therefrom while he was endeavoring to prevent the destruction of his employer’s machinery. As was well said by the learned judge in that part of his charge complained of in the ninth specification, [8] “ assuming it to be true that be might have escaped bad be not paused to look after his machine, such an error of judgment, at sucb a time, ought not to prevent a recovery.” ‘ It is not entirely clear that the court was right in refusing to permit the witness to answer the question referred to in the eleventh specification; but.defendant was not prejudiced thereby. The witness had previously testified that he himself was running engines in the same manner that plaintiff’s engine was operated at the time of the accident, and he did not consider it dangerous to do so. He had even testified that “it is not carelessness to run an engine in that way.” His answer to the question propounded could not have been more favorable to the defendant than this. At best it would have been substantially a repetition of the opinion he had already expressed. The defendant had the full benefit of that, and hence he could not have been prejudiced by the action of the court. The question complained of in the twelfth specification was entire!}'' proper. Being familiar with the position of the engines and the manner in which they were operated, the witness was asked to “state whether or not it was safe or otherwise — safe or dangerous — to run the small engine with out any person to attend to it,” and if dangerous, to “ describe the kind of danger.” The object of the question was to elicit facts clearly proper for the consideration of the jury in determining whether or not the defendant was justly chargeable with negligence. The question was not improper in form, nor was the testimony sought to be elicited irrelevant. The case appears to have been carefully tried,- and we find nothing in either of the specifications of error that calls for a reversal of the.judgment. Judgment affirmed.