Congdon v. Howe Scale Co.

START, J. The plaintiff claimed, and his evidence tended to show, that the injury in question was caused by the bursting of an emery wheel, furnished for his use while in the defendant’s service ; "that the wheel was of an inferior grade ; that its rated capacity was nineteen hundred revolutions per -minute; that the arbor upon which it was placed made twenty-seven hundred revolutions per minute; that this was beyond the resisting capacity of the wheel; that he was ignorant of the capacity of the wheel; that the defendant was negligent, in that it allowed the wheel to be used [262] upon an arbor thus revolving, without a guard to protect its workmen; and that a proper guard would have prevented the injury. The defendant was allowed to show, subject to the plaintiffs exception, what the practice had been in other shops in respect to guarding such wheels. In this the plaintiff claims there was error, because it did not appear that wheels in other shops were used under conditions similar to those under which the wheel in question was used. It is not claimed that such conditions were shown, but it appears, from an examination of the testimony referred to upon this subject, that they were not. Without deciding whether such testimony is admissible under any circumstances, we hold that the testimony should have been excluded. What other manufacturers had done with wheels under conditions not shown to have been similar to those under which the wheel in question was used, furnished no guide to the jury, by which they could properly decide whether the defendant was negligent; and this evidence may have led them to a wrong conclusion. Wheels in other shops may have been used' under conditions that would not require a guard to protect the workmen. These conditions not having been shown by the evidence, the jury may have found, from such use, that it was prudent and safe to use such wheels without a guard under all conditions. The plaintiff did not claim that it was not safe to use the wheel without a guard, under any conditions, but claimed that it was unsafe to so use it at a speed beyond its rated capacity. It might be safe and prudent to use a wheel on an arbor revolving nineteen hundred times per minute, without a guard, but this fact would not furnish a standard by which to determine the degree of care and prudence required when the same wheel is revolved twenty-seven hundred times per minute. The degree of care and prudence required of a master for the safety of his servants, cannot be measured by the care and prudence ex [263] ercised by other masters under conditions not shown to be similar. Haynes v. Burlington, 38 Vt. 350; Hine v. Pomeroy et al., 40 Vt. 103; Carpenter v. Corinth, 58 Vt. 214. The defendant, against the objection and exception of the plaintiff, was allowed to show, upon cross-examination of the plaintiff, that he held a policy of insurance against accidents, and that he was paid under the policy for twenty-six weeks of lost time. The defendant claimed, and its evidence tended to show, that the plaintiff’s injuries were slight and largely feigned. The exceptions do not show the purpose for which this testimony was received; but, if it was admissible upon any issue of the case, or by reason of any claims made by the plaintiff in his direct examination, the contrary not appealing, it is to be presumed that the court admitted it upon such issue or because of such claims, and that the court properly instructed the jury as to its use. Great latitude is allowed in conducting a cross-examination. Especially is this true, when a party claiming damages on account of a personal injury takes the stand for the purpose of proving the extent of such injuries. For the purpose of testing the truthfulness of a witness, it is proper to show upon cross-examination his interest, motive, inclination and prejudice. In view of the respective claims of the parties and the great latitude allowed on the cross-examination of a party or witness, we are not prepared to say that this was not proper cross-examination. The testimony of E. H. Webster was properly received. He examined the broken wheel after the accident and found marks thereon, and that the collars fitted these marks. The broken wheel and the collars were in court and could have been examined by the jury, but this did not preclude the defendant from showing in what condition they were found after the accident. A majority of the court are of the opinion, that, so far as the [264] plaintiff’s requests were sound and applicable to the case, they were complied with; and, while some expressions in the charge, disconnected from the charge as a whole, might be misleading, the charge, as a whole, correctly stated the law applicable to the case, Reversed and remanded.