Wallace v. Chicago, Milwaukee & Puget Sound Ry. Co.

HONORABLE R. LEE WORD, a Judge of the First Judicial District, sitting in place of MR. JUSTICE SANNER, disqualified, delivered the opinion of the court. On a former appeal in this cause (48 Mont. 427, 138 Pac. 499) this court affirmed the order granting a new trial. The following passage from the former opinion forms a pertinent introduction to a consideration of the questions presented on this appeal: “It appears that the plaintiff and other laborers were members of a wheel-press gang at defendant company’s shop in Miles City, and on April 4, 1912, were engaged in moving the drive-wheels of a locomotive from a track to a lathe, some thirty feet distant, for the purpose of truing up the wheels; that the wheels were very heavy, and it was necessary to block them in order to hold them stationary; that for this purpose they used short wooden blocks about two inches by six or eight inches, placed in front of and behind the wheels; that this blocking was required on account of the block or iron east between two or four of the spokes of each wheel, called a counterpoise or balance; and that defendant Feeley was in charge of the lathe. The testimony is conflicting as to whether or not the work of moving the wheels by the wheel-press gang on the occasion referred to was under the direction and supervision of defendant Feeley. ’ ’ After a careful examination of the evidence and the law applicable thereto, this court came to the conclusion that the only ground of negligence that found support in the evidence was the careless and negligent removal of the block of wood from its position in front of the wheel. It was further' held that under the evidence the question whether the defendant Feeley was a fellow-servant of the plaintiff or was a vice-principal of the defendant company should have been submitted to the jury under proper instructions. [351] On the second trial the question of the negligence of the company in removing the wooden block from its position in front of the wheel and the question whether at the time of the injury the defendant was a vice-principal of the company, and not the fellow-servant of plaintiff, were submitted to the jury. By their verdict the jury, in effect, found that the company was negligent in removing the wooden block from the front of the wheel; that this negligence was the proximate cause of the plaintiff’s injuries; and that the defendant Feeley was a vice-principal of the defendant company. The appeals are from the judgment and from an order denying a new trial. The second trial was upon the same pleadings. The evidence [1] was, in substance, the same as upon the first. The decision upon the former appeal is the law .of the case upon this. Numerous errors, both in the admission and in the exclusion of evidence, and in instructions given and refused, are assigned by appellants. All have been carefully considered. Some will be particularly noticed herein. None are prejudicial. Assignments Nos. 2 and 3 relate to the refusal of the court to permit appellants to show, upon the cross-examination of the [2] witness B. H. Smith, that the plaintiff had never made any complaint as to the dangerous character of the work. As this court held upon the former appeal that a failure of the company to provide a safe place to work or safe appliances with which to do the work, if any such failure existed, did not or could not have caused or contributed to plaintiff’s injury, the offered evidence was immaterial. At best it was a matter of defense, and one which appellants could not properly introduce upon the cross-examination of plaintiff’s witness. Nor did the court err in refusing to admit in evidence rule [3] No. 18, which is as follows: “Men in charge of machinists’ work shall themselves be machinists. Men not bearing the title of foreman, with pay accordingly, shall not' direct other men, or assume the responsibility of other men’s work.” Three of the assignments of error as to the exclusion of the offered rule arose upon cross-examination of plaintiff’s witness, B. H. Smith. [352] The principal defense was that plaintiff had assumed the risk incident to any neglect or failure to act on the part of the employees of defendant company who were alleged to have been-the fellow-servants of the plaintiff. Upon his direct examination the witness Smith had only testified to certain specific directions that he had given to Feeley and the wheel-press gang, of which plaintiff was a member. Under this state of facts the appellants were not entitled to introduce in evidence, on cross-examination, the rule in question, which, if admissible at all, was a matter of defense. The witness Smith did not come within the prohibition of the rule, because he, as machine foreman, had charge of the men and machines in the machine-shop. The rule was a trade union rule, and, so far as the record shows, was never adopted by.the railway company. But, even if the [4] rule had been in force as a rule of the company, it would not constitute a defense to this action, in view of the fact that the plaintiff had been directed by the witness Smith, the representative of the master, to obey the orders of the defendant Feeley. (Mason v. Richmond & D. R. Co., 111 N. C. 482, 32 Am. St. Rep. 814, 18 L. R. A. 845, 16 S. E. 698.) Error is predicated upon instructions 4, 17, 18, 19, 20 and 24 as given. While the giving of these instructions was not prejudicial, we note some of the objections urged: Instruction No. 17 [5] is in the exact language of section 5244 of the Revised Codes, and was properly given under Hardesty v. Largey Lumber Co., 34 Mont. 151, 86 Pac. 29. Under the law of this case as declared by this court on the former appeal, instructions Nos. 18, 19 and 20, which submitted to the jury the question of the negligence of the company in removing the block from its position in front of the wheel, and the question whether or not Feeley was a vice-principal, were proper. Instruction No. 24, the giving of which is urged as error, is [6] the substance of the holding of this court in Bourke v. Butte etc. Power Co., 33 Mont. 267, 289, 83 Pac. 470. If the defendants had desired a more specific instruction in reference [353] to the plan or standard to be adopted in determining the damages for impaired earning capacity, they should have asked for it. (Bourke v. Butte etc. Power Co., supra.) Nor do we find that the court committed error in refusing the instructions requested by defendants. In the main, they were covered by those given. The others were incorrect in point of law or inapplicable to the issues as this court declared them to be on the first appeal. We find no prejudicial error in the record. The judgment and order are affirmed. Affirmed. Mr. Chief Justice Brantly and Mr. Justice Holloway concur.