Acme Cement Plaster Co. v. Westman

Beard, Chiee Justice. Carl Westman, defendant in error, brought this action against The Acme Cement Plaster Company, a corporation, ^plaintiff in error, to recover damages for a personal injury alleged to have been sustained by reason of the negligence of .said company. The case was tried to a jury which returned a verdict in favor of Westman and against the company for ',$11,900. A motion for a new trial was denied and judgment ■entered on the verdict. The company brings error. For convenience the defendant in error will be referred to as plaintiff, and plaintiff in error as defendant. The allegations of negligence contained in plaintiff’s second amended petition, upon which the case was tried, are as follows: “That on the 5th day of December, A. D. 1908, said plaintiff while in the service of said defendant, for hire, at its mills and works at and near said city of Laramie, and while in the discharge of his regular duties as fireman, — 153 — without fault, negligence, or want of ordinary’ care on his part, but wholly through the gross, willful and w.anton carelessness and negligence- of said defendant, was dangerously and permanently injured .about the head and body, by the fall of a coal-bin of -defendant, which burst -or collapsed because it was built, constructed and maintained in an unsafe, defective and insecure manner, by defendant, in that the upright posts supporting the same were not fastened or secured by nails, screws, bolts or in:any manner whatsoever, and were not able to withstand the lateral- pressure to which they were subjected by the weight of the coal -in said bin. Plaintiff further alleges that he did not know and had no means of -knowing of the defective condition of said coal-bin, and that defendant had due and timely knowledge and notice of such condition and negligently failed to remedy the same or warn plaintiff of such dangerous and defective condition, or take precautions to make the same safe and able to ■withstand or resist the pressure of the coal upon the upright posts, whereby the said bin burst or collapsed and large' quantities of coal and timbers of wood were hurled upon and again plaintiff whereby he was dangerously and permanently injured by an upright post of said coal-bin which fell and hit or struck plaintiff,” etc. By its answer defendant denied these allegations, and pleaded contributory negligence on part of plaintiff. The reply denied the allegations of contributory negligence contained in the answer. It appears by the evidence that the coal-bin and the place where plaintiff worked were in the basement or lower story of defendant’s mill, the bin being nine or ten feet wide and situated on the west side of the basement. The east side of the bin was constructed by placing planks against a row of posts which were nine or ten by eleven inches in size, eight or nine feet in length and about nine or ten feet apart. These posts rested on cement or stone bases at the bottom of the-bin and supported a main stringer of the building above, each post having a cap three or four feet in length on its top, upon which the stringer rested. East of the bin there was a — 154 — space ten or eleven feet wide between the bin and the kettles which plaintiff was employed in firing. The coal was put in the bin from the west side, and at the time of the accident was five or six feet high at the east side of the bin. The room above, the floor of which was supported by the posts, was used for storing plaster, cement, hair and other material, and at the time there was stored in that room thirty-two tons of plaster and eleven tons of cement. Sometimes there was more and sometimes less stored there. The building had been used for the same purpose and in the same manner for four or five years. The plaintiff was injured by the falling of one of these posts. It is contended by counsel for defendant that there is no allegation of negligent construction of the bin contained in plaintiff’s petition. But we think, liberally construed, it does charge that it was negligently constructed in that the posts were not secured in "any manner sufficiently to withstand the pressure of the coal against them. The evidence shows beyond dispute that the posts were not fastened or secured by nails, screws or bolts;. but were held in place by the weight which rested upon them, and that this had been sufficient for that purpose from the time the building had been constructed or so used — four or five years — up to the time of the happening of the accident. It was therefore an important issue of fact to be submitted to the jury upon proper instructions whether or not such construction of the bin was negligent. The defendant was not required to furnish an absolutely safe place for plaintiff to work in, or to secure the posts in any particular manner. Its duty was to exercise such care in the construction of the bin, and such diligence in maintaining it, as to afford a reasonably safe place for the purpose for which it was used. The court, over the objection'of defendant instructed the jury as follows : “Instruction No. n. If the jury find and believe from the evidence that the defendant company and its officers knew or bad reason to know the peril and danger to which the plain — 155 — tiff was and would be exposed while in the work and employment in which he was engaged at the time of receiving the injury complained of in his petition, and did know or had reason to know of the defects complained of, in this: The upright post supporting the same was not fastened or se-pured by nails, screws, bolts or in any manner whatsoever; and if you find from the evidence that the plaintiff did re-peive such injuries, and said defendant company did not .make known and had not made known and had not given ¿lotice of such danger, peril and defects to the plaintiff; and 'jf the jury further find that at the time of receiving such injury, the plaintiff was exercising ordinary care in the work in which he was engaged, without fault or blame on his part, was so injured, then the defendant is liable in damages, and you should find for the plaintiff.” This instruction was erroneous and misleading. It assumes that the plaintiff was .and would be exposed to perils and dangers and that the defects complained of existed; and if it does not also assume that a failure to fasten or secure the posts with nails, screws or bolts was a defect for which the defendant would be liable, it would certainly tend to so impress the jury and lead it to conclude that a failure to so secure the posts would constitute negligence on the part of the defendant. Nor was the jury informed in any instruction that a failure to so secure the posts would not constitute negligence for which defendant would be liable, if the jury found that the post was otherwise sufficiently secured to make the place reasonably safe for the purposes for which it was used. The court also gave the following instruction over the objection of the defendant: “Instruction No. 12. The defendant company was bound to use reasonable care to provide a reasonably safe coal-bin near which plaintiff worked, and if you find from the evidence, that said coal-bin was under the management of said defendant company or its servants and that the same burst and collapsed owing to the want of proper care on the part of said defendant company and injured the plaintiff and such falling of the coal bin was of — 156 — such an event that in the ordinary course of things the same would not have! happened if said defendant company had used proper carfc, then such falling of the coal-bin.in the absence of evidence to the contrary is evidence that it arose from the lack of care on the part of the defendant company and thé unexplained falling of said coal-bin creates a presumption of negligence on the part of the defendant.’’ The instruction is ambiguous in that the jury was told that if the bin burst and collapsed owing to the want of proper care on the part of defendant, then, under certain conditions, the falling of the bin was evidence that it arose from the lack of ordinary care and created a presumption of negligence on the part of defendant. The only negligence charged in the petition was that the bin was built, constructed and maintained in an unsafe, defective and insecure manner in that, the upright posts supporting the same were not fastened or secured by nails, screws or bolts, or in any manner whatsoever. The burden rested upon the plaintiff to prove not only that the bin fell and injured him, but also that it fell by reason of some defect alleged in his petition. It is not in all cases that proof of the happening of an accident raises a presumption of negligence. Indeed it has been held by many courts that the doctrine — res ipsa loquitur — does not apply in an action by an employee against, his employer. The Supreme Court of the United States, in Patton v. Texas & P. Ry. Co., 197 U. S. 658-63, 21 Sup. Ct. 275, 277 (45 L. Ed. 361), states the rule thus: “That while in the case of a passenger the fact of an accident carries with it a presumption of negligence on the part of the carrier, a presumption which in the absence of some explanation or proof to the contrary is sufficient to sustain'a verdict against him, for there is prima facie a breach of his contract to carry safely, (Stokes v. Saltonstall, 13 Pet. 181 (10 L. Ed. 115): Railroad Company v. Pollard, 22 Wall. 341 (22 L. Ed. 877); Gleeson v. Virginia Midland Railroad, 140 U. S. 435, 443 (11 Sup. Ct. 859, 35 L. Ed. 458) ), a different rule obtains as to an employee. The fact of accident carries with .it no — 157 — presumption of negligence on the part of the employer, and it is an affirmative fact for the injured employee to establish that the employer has been guilty of negligence. Texas & Pacific Railway v. Barrett, 166 U. S. 617, (17 Sup. Ct. 707, 41 L. Ed. 1136).” In Spees v. Boggs, 198 Pa. St. 112, 47 Atl. 875, 52 L. R. A. 933, 82 Am. St. Rep. 792, the court said: “Except in the .case of a carrier, the rule is uniform that where recovery is sought on the ground of negligence of the defendant, the burden of proof is on the plaintiff, and in an action against an employer some specific act of negligence must be shown.” See also, City of Greeley v. Foster, 32 Colo. 292, 75 Pac. 351; Price v. R. R. Co., 202 Pa. St 176, 51 Atl. 756; Case v. C. R. I. & P. Ry. Co., 64 Ia. 762, 21 N. W. 30; Kuhns v. C. R. I & P. Ry Co., 70 Ia. 561, 31 N. W. 868. In the last cited case the court instructed the jury as follows: “But if .you are satisfied from the evidence that the accident in question by which plaintiff’s decedent lost his life was unusual and extraordinary, and one that in the ordinary use of railways would not happen, it is your privilege to consider the 'fact of such accident as one of the circumstances from which 3rou are to determine whether or not the road-bed 01-engine were in fact in reasonably good order and condition.” ,The court said: “It is claimed that this instruction is in accord with Tuttle v. Chicago, R. I & P. R. Co., 48 Iowa, 236. But in that case the plaintiff was a passenger, and in such case the rule is that the accident, when established, casts on the defendant the burden of showing there was no negligence on its part which contributed to the accident.- In this case the rule is different, and tire fact that there has been an accident, whether ordinary or extraordinaXy, has no tendency to prove negligence. If this is the rule, then all the plaintiff had to do was to prove the accident, and he would ,be entitled to recover unless the defendant assumed the burden of proving it was not negligent; and this it was not bound to do. If the accident can be regarded as a circumstance tending to show negligence, then the burden may be — 158 — shifted in all cases, and the jury might regard it as sufficient ,to enable the plaintiff to recover. Case v. Chicago, R. I. & P. Ry. Co., 64 Iowa, 762, 21 N. W. Rep. 30.” In McGrath v. St. Louis Transit Co., 197 Mo. 97, 94 S. W. 872, it is said: “This is not a case, under the facts disclosed, where . fes ipsa loquitur applies. It has been said that there are but two classes of cases wherein this doctrine can be invoked: ‘(1) When the relation of carrier and passenger exists and the accident arises from some abnormal condition in the department of actual transportation; (2) Where the injury arises from some condition or event that is, in its very nature, so obviously destructive of the safety of person or property, and is so tortious in its quality as, in the first instance, at least, to permit of no inference save that of negligence on the part of the person in control of the injurious agency.’ (Benedick v. Potts, 88 Md. 52, 40 Atl. 1067, 41 L. R. A. 478.) * * * But even if it were a case to which, under proper pleadings, the doctrine would apply, yet in this case specific acts of negligence are charged and not general negligence. In such cases where the plaintiff chooses in the petition to allege specific acts of negligence, the rule of law places the burden of proving such specific negligence upon the plaintiff, and a recovery, if had at all, must be upon the specific negligence pleaded.” (Citing many cases.) The evidence in the present case does not bring it within either class of cases above stated. It is not claimed that it comes within the first class, and the evidence does not show that the injury arose from a condition that in its nature was so obviously destructive of the safety of person or property or so tortious in quality as to permit of no inference save that of negligence on part of defendant. The evidence tends to show that the bin had been used for the same purpose for four or five years and apparently sufficient for that purpose and without accident; and there was evidence from which the jury might have found that the cause of its fall was not that the post was not sufficiently secured to withstand the lateral pressure of the coal, but because large chunks of coal — 159 — had been thrown against the post, some time before the accident, which loosened it; and plaintiff testified that the coal was put in the bin by a man who had a contract to do so.. There is no affirmative evidence that the manner in which the bin was constructed was not such as would be adopted by men of ordinary prudence under like circumstances or that such construction was negligence, other than the fact that the post fell; under the circumstances stated the mere fact of the unexplained falling of the post (if in this case it can be said to be unexplained) is not prima facie evidence of negligence in construction. Piehl v. Albany Ry., 30 N. Y. App. Div. 166, 51 N. Y. Supp. 755, affirmed in 162 N. Y. 617, 57 N. E. 1122. The instruction was not applicable to the evidence and therefore erroneous and should have been refused. Counsel for plaintiff contend that the giving of these instructions, if erroneous, was not prejudicial error for the-reason that in other instructions given the jury was otherwise and correctly instructed. With that contention we cannot agree. The instructions were quite lengthy, consisting-of twenty-seven paragraphs, containing inconsistent and confusing statements: While it is true that inconsistent instructions will not be held to be prejudicial and require a reversal of the judgment in a case where the appellate court can see-from the- evidence and the verdict that the jury must have-followed the correct one; the rule is otherwise where it appears that the jury may have, or probably did, follow the-erroneous one. “Ordinarily an erroneous instruction is not cured by the giving of subsequent correct instructions, necessarily inconsistent therewith, since it is impossible to tell which charge the jury followed.” (38 Cyc., 1782, and cases cited in notes.) Over the. objection of defendant, Mr. Henderson, a witness for plaintiff, was permitted to state from a copy of the-pay rolls of the rolling mill where plaintiff worked before and after the accident, the amount plaintiff earned each month from October, 1906, to February, 1908, before he160 was injured, and for May, June, July, August and September, 1909, after he was injured. Counsel for plaintiff have devoted considerable space in their brief to a discussion of the question, when and under what circumstances a copy of an instrument or writing may be used by a witness to refresh his recollection; but that question is not presented -by the record. The witness was not shown to have had anything to do with paying the plaintiff, or in the preparation of the payrolls from the copies of which he stated the several amounts, or in any way or at any time had any personal knowledge of plaintiff’s earnings while so employed. After stating his name, the witness .testified as follows: “Q. What is your occupation, Mr. Henderson? A. Chief clerk at the rolling mill at the present time. Q. As such chief clerk, have you access to the records and pay rolls of the rolling mills, during the years of 1906, 7 and 8? A. No, sir. Q. Well, have you access to those records? A. No, not the original pay rolls. Q. What have you access to? A. All that I have is the copy that we sent to Omaha at the time. Q. Is that an exact-copy of the original? A. Yes, sir. Q. Do you know when these original records, which you spoke of, were sent to Omaha? A. They go in the 5th of each month. Q. Are they in Omaha at the present time? A. Yes, sir. Q. Are they ever brought back to this mill, in Laramie? A. Not to my knowledge.” Upon that showing the witness was permitted to state the amounts from the copy referred to. It is apparent that there was an entire failure to show that the witness ever had any knowledge of the plaintiff’s earnings except from the pay rolls; and not having had any previous knowledge, of course he could have no recollection to be refreshed. The testimony was incompetent and should have' been excluded. Dr. McLean, one of the physicians who attended and treated plaintiff for the injury, was called as a witness on behalf of plaintiff and gave his opinion as to the' extent and permanenc)'- of the injury, and also as to the necessity for the performance of a surgical operation which had been performed on plaintiff’s head as a part of such' — 161 — treatment. He was permitted to testify, over the objection of defendant, to statements made to him by plaintiff in relation to his condition, sensations and feelings in the past; and that ruling is assigned as error. The rule seems to be quite well settled that such statements of' the party injured narrative of past conditions or suffering, made to the ordinary witness are inadmissible; but, “a physician may, however, testify to a statement or narrative given by a patient in relation to his condition, symptoms, sensations and feelings, both past and present, when’such statements were received during and were necessary- to an examination with a view to treatment, or when they are necessary to enable him to give his opinion as an expert witness.” (C. C. C. & I. R. R. Co. v. Newell, 104 Ind. 264, 3 N. E. 836, 54 Am. Rep. 312. See also U. P. R. Co. v. Novak, 61 Fed. 573, 9 C. C. A. 629; Stone v. Moore, 83 Ia. 186, 49 N. W. 76; Fort v. Brown, 46 Barb. (N. Y.) 366; Johnson v. N. P. R. Co., 47 Minn. 430, 50 N. W. 473; Pullman P. Car Co. v. Smith, 79 Tex. 468, 14 S. W. 993, 14 L. R. A. 215, 23 Am. St. Rep. 356; Barber v. Merriam, 11 Allen (Mass.), 322; Consolidated T. Co. v. Lambertson, 59 N. J. L. 297, 36 Atl. 100; and 5 Enc. Evidence, 608.) This evidence was admissible for the purpose of affording the jury the means of determining the weight to be given to the opinion of the physician, but not as evidence tending to prove the actual condition of.the plaintiff at the time of which he spoke, and the jury should have been so cautioned. For the' purpose indicated there was no error in admitting the testimony. For the reasons stated the judgment of the district court is reversed and the case remanded for a new trial. Reversed and remanded. Scott j J., and PotteR, J., concur.