Trumbull v. Martin

WOOD, J., (after stating the facts). We will dispose of the questions in the order presented in the brief of counsel for appellant. 1. The appellant contends that the jury was sent out to view the frame on which the saw was fastened and nothing else, and that it was misconduct on the part of the jury to open the saw as set forth in the above ground of the motion for a new trial. After hearing the evidence upon the above ground in the motion for a new trial, the court found in part as follows: “At the conclusion of the testimony in the case, counsel on either side had submitted numerous instructions which it would necessarily require some little time to examine and pass upon. The court suggested at this time that if counsel on both sides would consent, the jury might go down and view the appliance which was in controversy while the instructions were being settled. Counsel on both sides agreed to this suggestion and with the knowledge and consent of both sides, the jury were directed to go down in the care of the deputy sheriff and view the appliance which had been brought to the courthouse grounds by the defendant. The suggestion that the jury view this appliance was made during the progress of the trial by the defendant. When the jury was sent out to examine this part of the machinery, they were merely to make an examination. Neither side requested that the examination be made in any particular way or that it be in any way restricted. * * * The jury were kept together and were entirely free from any outside influence.” It thus appears from the facts as found by the court that the suggestion that the jury view the appliance came from the defendant and the defendant did not ask that the view be made in any particular manner, or that it be confined especially to what witness designated as the frame and not to that particular part called by one of the witnesses, the mantle, or that piece of shaft that the saw was fastened on. One of the witnesses testified that this piece of shaft that had the piece of saw on it and that they (the jury) took apart and examined, was a part of the frame work which they were directed to go out and examine. Another witness testified that the jury were authorized to examine the frame and that they were not authorized, as the witness understood it, to unscrew any taps and examine the inside to see how it was. The facts found by the court show that the jury were directed to examine the appliance which included the frame and that part of the shaft which held the piece of saw. The very purpose of the examination was to determine whether or not the saw that caused the injury was an old or a new one, and in the absence of some specific directions as to the method of making the examination, the jury were authorized, under the direction of the court, to adopt its own method for obtaining such information as the view or examination of the appliance would yield so long as no additional evidence was introduced. The mere physical act of removing the tap so that the jury might have a better view of the pieces of saw, was not the taking of additional testimony. The releasing of the parts of the broken saw from this hub or cylinder was but in conformity with the instructions of the court to view the appliance and enable them the better to determine the issue as to whether the saw which injured the appellee was an old or a new saw. That was the issue upon which the evidence had been adduced and the direction to view the appliance made at the suggestion of the appellant contemplated an examination of every part constituting the appliance which would throw any light upon that issue and enable the jury to apply the evidence pro and con which had been brought forward. Kirby’s Digest, section 6197; Fitzgerald v. Laporte, 67 Ark. 263-265, and cases there cited; Stanley v. Commonwealth, 63 S. E. 10. 2. The testimony as set forth in the statement was sufficient to sustain the verdict. It could serve no useful purpose to set out and discuss in detail the testimony bearing on the issue of fact as to whether the saw which injured the appellee was an old saw containing a crack of about six inches and had a hole bored in it, or whether it was a new saw which had been recently put on by the appellant. The issue as to whether appellant was negligent in furnishing the appellee a defective saw was one for the jury and the verdict upon the evidence adduced on that issue is conclusive here. 3. The court did not err in overruling appellant’s motion for a continuance. The motion, among other things alleged that Carter Harrison would testify that he was present at the time of the accident and that the plaintiff (appellee) was handling the slabs in an improper manner by carelessly and negligently throwing them into the cut-off saw; that the said Carter Harrison lived at "Womble, Arkansas, at the time of the accident; that from the time this suit was brought until the date of the trial, appellant had made every effort to secure the evidence of the witness, but did not learn of his whereabouts until Monday, April 15; that the witness is located at Gurtie, Oklahoma, which is not a telegraph station and that the appellant had not been able to reach the witness either by telegraph or telephone, but if given until the next term of the court could take the deposition of the witness; that the testimony of witness was material and that the witness was not absent by the consent of the appellant, and that the' appellant believed the testimony of the witness to be true. There was no manifest abuse of the discretion of the court in overruling the motion for a continuance, therefore such ruling of the court will not be disturbed. Joiner v. State, 113 Ark. 112; Cox v. Jonesboro, 112 Ark. 96; Bruder v. State, 110 Ark. 402; Sullivan v. State, 109 Ark. 407, and other cases in 1 Crawford’s Digest, p. 1012-1015. The motion, while stating that the residence of the witness at the time of the accident was in Womble, Arkansas, does hot state that the appellant had a subpoena issued before the witness left Arkansas. If the appellant had been sufficiently diligent in having the subpoena issued, he might have learned the whereabouts of the witness in time to have taken the deposition before the trial came on. Therefore, the motion did not state facts sufficient to show due diligence upon the part of the appellant. American National Ins. Co. v. White, 126 Ark. 483. The allegation in the motion that appellant had “made every reasonable effort to secure the evidence of Carter Harrison was but the statement of a conclusion.” Such statement, without setting forth the facts upon which such conclusion is bottomed, is not sufficient. Puckett v. State, 71 Ark. 62. 4. The appellant offered to show by a witness, John Johnson, that there was no possible way for the saw to have reached the frame and cut the same except by the operator pushing one end of the wood ahead of the other and thus bending the saw to reach the frame. The court refused to permit the appellant to make the above proof, to which ruling appellant excepted but did not preserve his exception in his motion for a new trial. Since the trial court did not have the opportunity to review this ruling, we will not do so. “Exceptions to rulings of evidence not incorporated in the motion for new trial cannot be considered on appeal.” Brown v. Simsboro Cash Store, 102 Ark. 531; Hastings Industrial Co. v. Copeland, 114 Ark. 415; Kilpatrick v. Rowan, 119 Ark. 175. 5. Among other instructions, the court gave the following: No. 2. “It was the duty of the defendant to furnish plaintiff reasonably safe appliances; if he failed to do this and this failure was the cause of the injury; if you find this by all the facts and circumstances in evidence, you will find for the plaintiff. ’ ’ The appellant, at the trial, made certain specific objections to the above instruction. Appellant contends in his brief that the above instruction is erroneous for the reason that it placed upon the appellant a higher degree of care than that required by the law because it practically makes the master an insurer of the safety of the servant. The objection to the instruction at the trial was not placed on.that ground. Hence appellant waived it, and his objection so far as the point here urged is concerned, must be treated as a general objection. The instruction was not inherently erroneous and a general objection to the same was not sufficient. If appellant, by specific objection had called the attention of the trial court to the particular defect of which he here complains for the first time, doubtless the court would have corrected the instruction in conformity with his suggestion. St. L., I. M. & S. Ry. Co. v. Barnett, 65 Ark. 260; Pettus v. Kerr, 87 Ark. 396. Moreover the court in its instruction No. 4 told the jury that “the test of a master’s duty in furnishing appliances is what a reasonably prudent person would ordinarily have done in such a situation.” The two instructions were not in conflict and when taken together they were tantamount to declaring the law to be, that it was the duty of the defendant to exercise such care as a reasonably prudent person would exercise under similar circumstances to provide the plaintiff with reasonably safe appliances and if defendant failed to do this, and such failure was the cause of the plaintiff’s injury, then the defendant would be liable. The appellant saved a general objection to each of the instructions that were given by the court and it would unduly prolong this opinion to consider them in detail. We have, however, considered each of the objections urged by the appellant to the rulings of the court in giving and refusing prayers for instructions and we are convinced that the charge of the court when taken as a whole correctly declares the law applicable to the facts of this record in conformity with familiar principles that have been repeatedly announced by this court involving the relation of master and servant and their reciprocal duties under a similar state of facts. We find no error in the rulings of the trial court prejudicial to the appellant and the judgment is, therefore, affirmed.