Grant v. Varney

Mr. Justice Campbell delivered the opinion of the court. The first instruction given by the court of its own motion is as follows: “If the jury believe from the evidence in this case that the defendant, E. W. Bush, was superintendent of the defendants, and had full charge and control of the property and of the men employed therein,’then it was his duty to see that the drift in which deceased was at work was properly and securely timbered, and his failure to do so would be negligence, and his negligence would be the negligence of the other defendants whom he represented, and.he could not delegate this duty to an employé and shift the responsibility for negligence in not properly timbering such drift on to such employé, so that the defendants could claim that the injury occurred by reason of the negligence of a coemployé. The duty to furnish a, safe place for said Varney to ivorlc in was the duty of the defendants. If they failed in that, they were guilty of negligence.” ■ The defendants assign for error the giving of the foregoing instruction, especially the portion which we have italicized. This instruction is not the law. It virtually declares that the duty of the master is to furnish to the servant an absolutely safe place in which to work. In other words, it makes the former an insurer of the safety of the latter. The failure to provide a safe place for the employé to work in is not negligence of his employer, but the jury were, by this instruction, told that it was. The contention of counsel for appellee that the vice in this instruction is not fatal to the judgment, because in other and subsequent instructions the jury are practically told that the employer’s duty requires that he should-furnish a reasonably or ordinarily' safe place for his employé to work in, is plausible, rather than sound. True it is that where the court gives an instruction which contains only a partial, though, so far as it — 334 — goes, correct, legal proposition, and in another instruction completes and perfects the statement of the correct rule, prejudicial error may not be assigned. But where, in the same charge to the jury, are found one instruction embodying a correct legal principle, and another instruction containing a contradictory statement upon the same proposition, which is not the law, there is error. For this court to attempt to speculate or determine which instruction the jury in such a case selected as stating the correct rule, and which they rejected as incorrect, would lead us upon an uncertain voyage, and would be to credit the jury with powers of legal discrimination superior to those possessed by the court which -submitted for their guidance rules so essentially antagonistic. To say that a rule which makes a master the insurer óf the safety of his servant is, in efféct, the same rule which requires that he shall provide only a reasonably safe place for the latter to work in, would be to abolish all rational and recognized legal distinctions. Wells v. Coe, 9 Colo. 166; Clare v. The People, 9 Colo. 122, and cases cited; Holman v. Boston Land & Security Co., 20 Colo. 7. 2. This ruling upon the foregoing assignment of error necessitates a reversal of this case, and renders unnecessary a determination of the numerous other errors discussed. In view, however, of the contingency of another trial, and to save possible error in the court below, we feel constrained to add some suggestions that may be of some assistance to the court and counsel. In a case involving issues such as are raised by the pleadings and evidence in this case, it would seem that so many of the questions, fully discussed by counsel in their briefs, have been settled by repeated decisions of this court that an examination of these cases ought certainly to furnish a satisfactory and safe guide to court and counsel in drawing instructions. (a) Witnesses for the plaintiff were permitted, over defendants’ objection, to state, in substance, what was the proper method of timbering a drift run in such ground as the evidence shows this one penetrated. Counsel for defendants — 335 — now say that such questions permitted the witnesses to state what the jury were, as a matter of fact, to find from the evidence, and that the opinions of the witnesses were not admissible. The witnesses were not allowed to state whether or not this drift, with the timbers fifteen or sixteen feet from the breast, was safe. They spoke only as to the proper way to timber it. W e think there was no error in this. These witnesses qualified as experienced miners. The questions related to matters of skill in a department of labor that requires special training, and to which only those skilled in such work were competent to give intelligent answers. The fact, if it be a fact, that the court did not explain to the jury this class of evidence, and throw about it the proper safeguards, does not go to the admissibility of the evidence, but only to the alleged error of the court in other particulars. (5) The court below struck out certain evidence given by one of the witnesses for the defendants, and refused to admit other evidence offered by the defendants, tending to show that defendants had issued general rules and instructions to its workmen, which provided, in substance, that the workmen who were engaged in running the drift should do timbering whenever they considered it necessary ‘and essential for their safety. Such evidence was, of course, pertinent, and an offer to prove such rules by competent testimony should have been allowed. An examination of the record show's that such attempt was only to establish that such instructions had been given to individual workmen, and no offer was made to show that any general rules or instructions had been issued by defendants or their superintendent, or that knowledge of such directions to individual employés had ever been brought home to the deceased. In this ruling by the court there was no error. (c) In instructions Nos. eleven, thirteen and fourteen, as asked by the defendants, the court stated to the jury a hypothetical case, based upon the evidence, which, if the jury found to be true, they were told, would prevent a recovery by the plaintiff. The assumed case was one that was intended — 336 — to constitute contributory negligence op the part of Varney. To each one of these instructions the court added a proviso which, in its logical effect, must have conveyed to the minds of the jury — if it conveyed any intelligent meaning — that notwithstanding they might, in accordance with the first part of the instructions, or the instructions as asked, find that Varney was guilty of contributory negligence, yet they must not find for the defendants unless they also believed from the evidence'that Varney was not exercising reasonable care and prudence. It is unnecessary to determine whether or not these instructions, as asked by the defendants, were the law. It is sufficient .to say that, as modified and given, they must have confused and misled the jury, as they would almost any legal mind. It is true that if a master is guilty of negligence which was the proximate cause of the injury complained of, and there is nothing else in the case that calls for the application of some recognized exception to the general rule, the servant may recover, if he was at the time using reasonable care. If the proviso added to these instructions merely states this general rule, and if the. instruction as asked stated a contradictory rule, the former should have been given by itself, and the latter refused altogether. If, however, the instructions as asked did state what in law constitutes a case of contributory negligence, they should have been given. But if it be contended that both these instructions and the provisos are but different forms of the same legal proposition, still it was confusing to the minds of the jury thus to combine them; for the adding of the provisos would naturally lead the jury to conclude that the instructions as asked were themselves incorrect, and that the court thereby intended the jury to understand that the provisos added by the court were necessary to make the instructions good. If, on the other hand, the instructions and provisos constitute inconsistent propositions of law, then in one instruction we have two incorrect and contradictory rules, and such combination, of course, would be prejudicial error. (d) We think that Moore was not a fellow servant of — 337 — Varney. The duty of the master is to furnish and maintain a reasonably safe place for the servant to work in. If the master delegates to an agent the performance of this duty, the latter is considered as the representative of the former; and if such agent is negligent in furnishing or maintaining such a safe place, and if, in working therein, and without his fault, an injury occurs to another employe, such negligence is the negligence of the master, for which the injured workman may recover. It is the same as where the master is bound to furnish for his workmen reasonably safe and proper machinery, and employs an agent to purchase it, or where he employs a servant to maintain the same in good repair. If such agent is negligent, and selects unsuitable or unsafe machinery, or the servant neglects to keep in good repair-said machinery, in using which another servant receives an injury without any fault on his part, the negligence of the agent who bought the machinery, or of the servant whose duty it is to keep the same reasonably safe, is the negligence of the master, for which an action will lie. (e) If this case is to be tried again, we think there will not be a repetition of the unusual scene that marked the close of the first trial. In his closing argument to the jury, counsel for plaintiff, actuated, doubtless, by zeal for his client, and possibly carried away by the exuberance of a heated imagination, went outside -of the record, and, at the close of a scathing arraignment of defendants, referred to them as “ living in their mansions, and handling their millions.” The record is silent as to any evidence upon the kind of houses in which defendants live, or the extent of their wealth. Objections were promptly made by counsel for defendants,- and plaintiff’s counsel withdrew the reference, and asked the juiy to strike it from their minds, in which request the court, somewhat mildly, joined with counsel, and told the jury entirely to disregard the statement because it was improper, and inferentially referred to the counsel for plaintiff by remarking that “such statements should not be made in' court to the jury in the argument of this case.” Thereupon — 338 — plaintiff’s counsel proceeded with his argument, employing language set out in full in the bill of exceptions, — exceedingly forceful, eloquent and picturesque. At the close of his peroration, as we are advised by the affidavit of one of defendants’ counsel, “ the audience broke out into prolonged!, loud and continuous applause, thereby manifesting their approval of the statements of counsel for the plaintiff.” The court said to the audience, “ Gentlemen, that is entirely improper to have any such demonstrations in the court room; ” and again the court cautioned the jury against alio vying such things as these to influence their verdict. This rather extraordinary and dramatic closing of a trial in a court of justice calls for a few words from us. Great latitude should be allowed counsel in addressing a jury, so that he may fully and fairly present every point in his case; but he should be kept within the limits of the evidence, and not be permitted in his argument to testify, without having been sworn as a witness, or to interject into the case evidence that was never elicited at the trial. In Brown v. Swineford, 44 Wis. 282,— which decision fully comports with our ideas of professional ethics, — the forcible remarks of Chief Justice Ryan we adopt as our own. The case was an action of tort, calling for exemplary damages, and evidence of the financial ability to pay was admissible, under the decisions of that court. There was no evidence at all upon this point. Defendant, however, was connected with a railroad corporation. In argument to the jury counsel for the plaintiff endeavored to supply the defect in his proof' as to the defendant’s pecuniary ability to respond to a verdict by drawing for his facts upon his unaided imagination, and attributing to the defendant the possession not only of great wealth, but ascribing to him the possession of earthly goods in amount equal to that belonging to the corporation of which defendant himself was only a subordinate officer. For this the supreme court reversed the judgment of the lower court. In that case, as in this, the practice condemned arose in the case of an eminent member of the bar, whose professional — 339 — reputation is well known, and “ whose professional ability needs no adventitious aid, and who probably fell into this error casually and inadvertently. His professional standing shields him from personal censure, while it will give emphasis to the rule laid down.” The applause of the audience probably could not have been anticipated, and for such a demonstration no one connected with this ease can be held responsible. In our judgment, the court should have more pointedly rebuked counsel for his violation of professional conduct, and more clearly impressed upon the jury that they should not be influenced thereby. A spontaneous outburst of applause by the audience ought not to have been passed over as only a trivial offense, but they should have been punished in some proper way, or at least severely censured, for their reprehensible interference with the course of justice, and for their evident attempt to influence or coerce the return of a verdict for plaintiff. The jury returned with their verdict a statement that neither the transgression of counsel nor the applause of the audience influenced them in their deliberation. Possibly not. Possibly the verdict would have been the same had there been no audience present, and had counsel altogether waived his closing argument; but that, without any suggestion or request, so far as the record shows, the jury should have made such an unsolicited and voluntary finding awakens in our minds a fleeting suspicion that their better judgment must have told them that such conduct sometimes, with some other juries, might possibly produce such a result. The question is not, necessarily or primarily, what effect did such things as happened at the close of this trial have in this particular case, but what tendency do they and would they naturally and probably have with juries in general, in arriving at their verdicts ? The most impartial minds and the most honest men find it difficult to decide correctly and fairly the complicated questions of fact that are submitted for their determination — 340 — in a lawsuit, without having thrown into the balance that which naturally appeals to passion and prejudice. When such foreign influences are brought to bear upon either trained or untrained minds, it is difficult to tell just what effect they have. Whatever be the merits of his cause, every man is entitled to a fair and impartial trial in courts of justice, according to the established rule of judicial procedure. In this state he is not required to submit the issue of his life and his property fights to a verdict of a town meeting, or to an organized band of people who throng the court room to impress or coerce by their presence the jury which has been organized by law to try his cause. The foregoing considerations require that the judgment should be reversed and remanded. Reversed.