Smith v. Oil City Tube Co.

Opinion by Mb. Cheep Justice Sterrett, • After a careful review of all the testimony we are satisfied that material questions of fact for the determination of the jury are presented therein, and hence it was the duty of the court to submit the case to them with proper instructions. There is not a single complaint as to the charge, or any of the learned judge’s instructions, except his refusals to give the binding instructions requested in defendant’s first and fifth points for charge; and these constitute the only assignments of error in this case. In the first of these he was asked to say, “ That under all the evidence the verdict should be for the defendant,” and in the other, “It appearing that the plaintiff’s place was outside the skid, and therefore safe, and that no one in authority instructed him to go over where he was hurt, there is no evidence of negligence on the part of the defendant, and plaintiff cannot recover.” [491] As to tlie facts of which each of these points is predicated, the testimony was more or less conflicting, and it would have been error to have withdrawn the case from the jury by affirming either of them. It was conceded that plaintiff was not a trespasser, but “ a workman properly in the place in which he was working,” and also “ that the place in question was dangerous.” As to the degree of danger, to what extent it was patent, and whether the plaintiff was properly instructed and warned of its existence and dangerous character or not, the testimony was conflicting, and therefore for the jury. In affirming defendant’s second, third, fourth, sixth and seventh points the court, in defendant’s own words, very guardedly instructed the jury that if they found “ from all the evidence that the skids were so constructed that plaintiff could not be injured without leaving the place where he was put to ■work, and stepping over the skid into the hole, and that such skids and machinery were safe when used with ordinary care, that is all that the law required and the verdict should be for the defendant. “ If there was a hole beyond the first skid into which one might have stepped by climbing over the skid, that cannot bo imputed as negligence on the part of the defendant, unless the jury find that plaintiff’s place was over there, or that some one in authority instructed him to go there. “ That the subsequent covering of the hole is not, of itself, evidence of negligence. “ If the hole rvas visible or the plaintiff was properly instructed as to his duties and warned not to step over the skid, it was his duty to recognize the danger of such a step. His failure to do so would be -at his own risk and would constitute such contributory negligence as will prevent any recovery in this case. “ That the plaintiff was under no compulsion to enter upon the employment in which he was engaged at the time of his injury; that in undertaking the service required of him, he is presumed to have considered himself competent to perform such service, and if, from the situation, location and character of the machinery, it were visibly dangerous, or if by his exercise of ordinary and prudent care or inquiry the plaintiff would have discovered the place where he was injured, he was bound to [492] observe care under tbe circumstances, and having omitted such care, the plaintiff was guilty of negligence, and cannot recover.” Viewing the verdict in the light of these instructions given at defendant’s request, it is very evident that in determining the disputed questions of fact the jury must have found in accordance with the plaintiff’s, and not the defendant’s theory of the controlling facts. » There appears to be nothing in the record that requires further elaboration. Both specifications of error are overruled, and the judgment is affirmed.