Puget Sound Electric Ry. v. Van Pelt

GILBERT, Circuit Judge (after staling the facts as above). It is contended that the court erred in permitting two witnesses for the defendant iti error to testify to facts tending to show that the unusual current of electricity which caused the explosion of the fuse was created by a wire connecting two of the coaches of the train, which was pulled out of its coupling, and thereupon fell and came in contact with the hose hanger and grounded the current. It is urged that this evidence was inadmissible for the reason that the only ground of negligence alleged in the complaint was negligence in placing the fuse in the position in the car in which it was, and that it was not alleged that the pulling out of the connecting wire between the trains resulted from any negligence of the plaintiff in error. In other words, the contention is that the defendant in error, having alleged one specific act of negligence, was allowed to introduce evidence of another act of negligence not alleged in his complaint. The .plaintiff in error was using a fuse which was so made as to explode upon the sudden irruption of a strong.electric current. The negligence charged was the act of placing the fuse and leaving it unprotected in a' position where it was dangerous to the motorman, whereas it could have been so placed as to avoid such danger. It was to show how it occurred that a current of sufficient force to cause the explosion came to the fuse that the evidence was introduced, not to show an act of negligence on the part of the plaintiff in error. [208] While it may not have been necessary to adduce such evidence, there can be no question that it was admissible as showing the circumstances under which the accident occurred. That the current might in the ordinary operation of a train become short-circuited was a contingency likely to occur, and it was probably one that could not in the exercise of due care have been anticipated or prevented. Certainly it cannot be said, under the circumstances shown in this particular instance, that the pulling out of the wire was the result of negligence on the part of the plaintiff in error, and there is no suggestion in the record that it was. The evidence was that it occurred by reason of a screw in the coupling becoming loose. The pulling out of the wire in the manner in which it occurred was one of perhaps several contingencies that might arise to produce a current sufficient to explode the fuse. In fact, the fuse was placed there for the purpose of being exploded. Its office was ,to explode and thereby cut off a current of dangerous intensity. The court, in charging the jury, held them strictly to the consideration of the specific act of negligence charged in the complaint, and instructed them that the cause ot action was grounded upon negligence of the plaintiff in error in placing the fuse without properly guarding it so that it could not injure the motorman in the case of an explosion, and told them that the burden of proof was upon the plaintiff in the action “to prove that the defendant was negligent as alleged — that the fuse was improperly placed; that it could have been placed in a different situation, where it would not have been a menace to the motorman.” The plaintiff in error points to the fact that in the course of the charge the court said that the plaintiff must show by the preponderance of the evidence “that the defendant was, as a matter of fact, guilty of some act or acts of negligence which constituted a proximate cause of the injury,” and also said, “If you find from a preponderance of the evidence that the defendant did not use such safe and adequate appliances, or that the defendant did not protect the appliances furnished in a safe and adequate manner, * * * your verdict must be for the plaintiff”; but this language cannot be construed, and could not have been understood by the jury, as referring to any other act of negligence or to any other appliance than that which was specifically referred to in the complaint, for the court followed those instructions with further instructions confining the attention of the jury to the issue in the case, which was whether the fuse was in fact dangerous to the motorman in the place where it was located, and could have been so located as not to be dangerous. It is true that, where the specific acts constituting the negligence are alleged, evidence of other acts of negligence is not admissible. The plaintiff in error cites -appropriate cases in support of that rule. But it is also true that, “under allegations of the particular acts constituting the negligence, proof of all incidental facts and circumstances that fairly tend to establish the negligence of the primary acts charged is’ admissible.” 29 Cyc. 584. This doctrine is well sustained by the decisions. Thus, in a case where the negligence was alleged to consist in placing, keeping, upholding, and managing a certain gangway upon and against a door, opening, or entrance to a warehouse, evidence that there were no fastenings to retain the gangway in an upright position [209] was held admissible, the cause of the action being the falling of the gangway, causing the plaintiff’s injury. Morton v. O’Connor, 85 Ill. App. 273. In Lucas v. Wattles, 49 Mich. 380, 13 N. W. 782, Judge Cooley said: “When the defendant is notified with what negligence lie is charged, he is thereby informed that the circumstances which tend to show that he was or was not wanting in due care in that particular will be in issue; and he must ho prepared with evidence respecting them.” In Railroad Co. v. Chinsky, 92 Ill. App. 50, where the negligence charged was the negligent running of an engine without warning at a crossing, the court held it was entirely proper to allow proof that there were no gates at the crossing, lor the purpose of showing the physical conditions and surroundings of the place where the accident occurred. In C. I. R. R. Co. v. Lane, 130 Ill. 116, 22 N. E. 513, in a similar case, the court permitted evidence to show that there was no flagman at the crossing, although there was no ordinance requiring that a flagman be placed there. The proof was admitted to show the jury the existing circumstances attendant upon the alleged injury. Of similar import is North Chicago St. Ry. Co. v. Cotton, 140 Ill. 486, 29 N. E. 899. In South Chicago St. Ry. Co. v. Purvis, 193 Ill. 454, 61 N. E. 1046, the negligence charged was that the defendant carelessly and recklessly moved its street car in approaching a certain avenue. Evidence that the brake and controller were out of repair was held admissible as bearing on the question of the manner in which the car should have been run when approaching the avenue. ■ Error is assigned to the admission of the testimony of a witness who testified as an electrical expert to the effect that the fuse was placed in a dangerous position. The testimony must have involved a knowledge on the part of the witness of the degree of intensity with which such a fuse would explode and the volume of the attendant electric flash, which would have been within the proper province of expert testimony; but conceding that the question was one of which the jury were competent to judge without the aid of expert evidence, we are of the opinion that the admission of such testimony was not reversible error. The rule is that where the jury, upon the undisputed evidence, must have reached the same conclusion as the expert witness, or where the evidence so admitted is on a point on which the jury are entirely competent to decide in accordance with the general experience, its admission will, upon appeal, be regarded no ground for reversing the judgment. 17 Cyc. 60, and cases there cited. It is contended that the trial court erred in excluding evidence offered on behalf of the plaintiff in error to show that at the time of the accident the defendant in error had a policy of accident insurance which under its terms provided that the insurance company should be liable to the insured, in case of permanent disability arising from such an accident, for 12 months’ total disability, and that 2 months after the accident the defendant in error freely and voluntarily settled with the company, and released and discharged it from liability under the policy, on account of the injury to his eyes, in consideration of the payment by the company of a sum equal to what he would be entitled to receive under said policy for 4 months’ total disability and 2 months’ [210] partial disability. It is claimed that this evidence was admissible as tending to show that the injury was not so serious as it was alleged to be in the complaint. It is true that, if the defendant in error in his settlement with the insurance company made admission of any fact which would tend to contradict the allegations of his complaint, evidence thereof would have been properly admissible. The complaint, which was filed nearly 4 months after the accident, alleged, in substance, that the defendant in error was rendered blind for a long period of time, and that after weeeks of intense suffering and mental agony, and after treatment by the best specialists known to medical science, his sight had been partially restored, but that he was advised that his sight might never be better, and that there was danger of his total blindness as the result of such injury to his eyes. It must be apparent that a settlement made 2 months after the accident on the terms of the offered proof could have absolutely no probative value as tending to contradict in any degree the averments of the complaint. Such a settlement was no admission of any fact, and we find no error in its exclusion by the trial court. Error is assigned to the instruction to the jury on the subject of the assumption of risk. The court said: “To make a complete and valid defense on that ground, it should be proved by a fair preponderance of the evidence that the plaintiff himself was informed as to the risk there was — the nature of the danger in which he was placed for work, with that fuse located as it was. * * * The law does not under any circumstances exact of him the use of diligence in ascertaining such defects, but charges him with knowledge of such only as are open to his observation ; beyond that he has the right to assume, without inquiry or investigation, that his employer has discharged his duty of. furnishing him with safe and proper instruments and appliances.” If these instructions were open to objection, the error therein was fully cured by the remainder of the instructions on the same subject, in which the court said: “He is chargeable with the assumption of the risks that were necessarily incident to the employment, and with the assumption of risks which he knew about, of which he had knowledge — actual knowledge — and also with the assumption of risks which were obvious and which should have been known to him, if he had been vigilant and alert for his own sake. If the fuse was placed in a situation where it would injure him by its explosion, and there was negligence on the part of the defendant in placing it there, the question then to be decided is whether the plaintiff himself knew that it was liable to explode and flash in his eye and do him injury. If he had that knowledge, it should be considered that he assumed all the risk, and he is not entitled to compensation by reason of the injury which he suffered.” We find no error for which the judgment should be reversed. It is accordingly affirmed.