Butler Ballast Co. v. Hoshaw

Me. Justice Weight delivered the opinion of the court. Appellee, as appears from the evidence, was employed by appellant to clear away the earth that fell upon the track, and at the sides, from the scoop of its dredge, when excavating for coal. To operate the machine properly it was necessary to change its location upon the track, and this was done by means of steam power applied through machinery to propelling wheels set upon the rails of the tracks. These wheels, or some of them, would at times slip or slide upon the rails without moving the machine, and in such instances it became necessary to sand the wheels before the machine could move. It was a disputed fact upon the trial whether the duty of sanding the wheels belonged to appellee’s employment, but however that was in fact, the appellee in his testimony admits he did it habitually and regularly when requested by those in charge of the machinery. Otherwise it seems clear to us, from all the evidence in the case, appellee had no other duty to perform in the operation of the machinery; his other duties, like those of a section hand upon a railroad, were to keep the track in order, and we are free to say, from the evidence, appellee was not a fellow-servant with those who operated and controlled the dredge. At the time of the injury, as we have said, appellee had been accustomed to sand the wheels when occasion required, by direction of the engineer or other person in charge, and whether the master’s employment included that duty or not in the first instance, it is reasonable to infer from the length of time appellee had performed the same, it was with the master’s knowledge and consent, and whatever advice or direction was given by the person in charge of the machine, will properly be held to be the act of the master. The evidence is that the propelling and other wheels, next to the iron lined timbers, against which they rubbed, was unguarded and without protection, and it was a fair question for the decision of the jury, to say if the failure to so protect them was an act of negligence, and the jury decided it against appellant. At th e time of appellee’s injury one of the wheels, the third wheel, at no previous time accustomed to be sanded, slipped upon the rail, and appellee having been directed by the man in charge of the machine to sand it, attempted to do so. The space between the track and excavated pit was narrow, and incumbered with a b.ank of earth higher than the beam along the side of the wheels. In his effort to reach this wheel to sand it, appellee slipped from the bank of earth upon the beam, the machinery and wheels being in motion, and in consequence of the wheel being unguarded, and by his being caused to slip upon a frozen clod, or other substance then upon the beam, his left foot slipped and the whirling wheel spokes caught his toes against the iron lining of the beam, and thereby cut off the ends of the four small toes, and a piece from the big toe. The vital issues upon the trial were, (1) as to the alleged negligence of appellant in failing to guard the wheel; (2) the direction to appellee to sand the wheel while it was in motion; and (3) as to the contributory negligence of appellee. We have already expressed our opinion concerning the first point. The other points may be considered together. We have already given our opinion that appellant was bound by the acts of the person in charge of the machine, in his relation to appellee. Appellee was invited to sand the wheel in the circumstances it was done. The general rule is that the servant may often be deemed to have used ordinary care, when acting under the express invitation or advice of the master, even though, but for that circumstance, his conduct would be deemed clear evidence of negligence. (Sec. 91, Shear. & Red. Neg.) Upon the whole evidence we feel compelled td say that the jury were warranted in finding," as they did, these several issues of fact against appellant. It is objected the court permitted two of appellant’s witnesses to be asked, on cross-examination, if they had not tried to procure from appellee releases to appellant for his injuries, and, it is argued, such evidence tended to prove appellant admitted its liability. The evidence was not competent for such purpose, but it was proper for the purpose of tending to prove the interest the witnesses had assumed, and might be considered in connection with their credibility, and was therefore proper cross-examination. It frequently occurs that evidence is admissible for a specific purpose, and for none other. In such cases it must be admitted, and its use or effect controlled by the request for proper instructions for such purpose. We have examined the instructions given to the jury at request of appellee, of which complaint is made, and do not find them subject to the objections urged against them. They are, we think, confined to the issues tried, and as fairly state the law as the rights of appellant demanded, and when, considered together with those given at the request of appellant, we feel compelled to say there is no just ground for appellant’s criticism of the ruling of the' court relative to the instructions to the jury. We are not prepared to say that the loss by a young man of the ends of his toes, is excessively compensated by $750. Finding no reversible error in the. record and proceedings of the Circuit Court, its judgment will be affirmed.