United States C. I. P. & F. Co. v. Driver

SIMPSON, J. This is an action by the appellee to recover damages on account of personal injuries received by the plaintiff while engaged in Ms duties as an employe of the defendant. The first assignment of error insisted on (being the third in number) is to the action of the court ‘in overruling defendant’s demurrer to the third count of the complaint. If said count is based on subdivision 2 of section 1749 of the Code of 3896, it fails to allege that the master mechanic had “any superintendence instructed to him, whilst in the exercise of such superintendence.” ■ Consequently the demurrer io said count should have been sustained. If it is under [585] the common law, the damages are claimed because of the failure of the master mechanic to instruct the plaintiff as to the danger incident to the work, and it is not alleged that said master mechanic was charged with that duty. The third plea is defective, in not stating that there was a safe way of doing the Avork; but it is not necessary to decide Avhether it is subject to the causes of demurrer assigned, as the cause must be reversed for other causes. The demurrer to the fifth plea was properly sustained, on the ground that it does not allege or show that there was a safer way of doing the work by standing on the pipes, nor is it alleged that the danger was obvious, or that plaintiff knew of it. There was no error in overruling the objection to the question to the plaintiff, when on the stand as a witness: “Could you stand on the ground here, on either side, and hit the chisel?” This called for a-statement of a fact, and the answer of the witness not only stated the fact, but went on to explain the position, which showed that he could not stand on the ground and do the work. The objections to questions on the ground that they sought'proof as to permanent injuries were properly overruled, as they did not necessarily call for such proof, but for matters tending to shoAV the extent of the injury received. Charges could have been requested limiting the extent of the testimony. The court erred in sustaining the objection by plaintiff to the question to the witness (the defendant) : “Who told you to get up there?” The negligence relied on ip the second count of the complaint is that Niece (or Neace), to whose orders plaintiff was bound to conform, ordered him to go upon said flask or casting, etc. It was certainly competent for the defendant' tó ask the witness, on cross-examination, who it was that gavé the order tó him. [586] The court erred in instructing the jury in his oral charge: “If after considering all the evidence, you find this defendant ordered the plaintiff to go and work around there, * * * plaintiff would be entitled to recover.” The negligence complained of was, not that the defendant “ordered the plaintiff to go and work around there,” hut that one Niece (or Neace), to whose order plaintiff was bound to conform, etc., ordered him .to go upon said flask, etc. Said charge also ignored the defense of contributory negligence. The judgment of the court is reversed, and the cause remanded. Reversed and remanded. Anderson, Denson, and Mayfield, JJ., concur.