McFarland v. George W. Jackson, Inc.

Mr. Justice Smith delivered the opinion of the court. Abstract of the Decision. 1. Judgment, § 247*—when the record may he corrected to show the granting of a new trial. Where at a prior trial the jury returned a verdict against one defendant and was silent as to a co-defendant, and the trial judge granted the first defendant’s motion for a new trial and the plaintiff’s motion for a new trial as to the codefendant, and the minute clerk afterwards drew his pen through the entry in the law record as to the ruling on plaintiff’s motion for a new trial as to the codefendant, at the request of the clerk of the attorney for the defendants without any authority of any kind and without any order of court, the court had full power -to correct the record after the term and to make it speak the truth nunc pro tunc, as the cause had never been disposed of by final judgment as to either defendant and was still pending before the court, and the court did not err in refusing to dismiss the cause as to such codefendant. 2. Master and servant, § 173*-—when a master adopts an unsafe method of work. Where a first count alleged the negligent adoption of an unsafe method by defendants to move sidewise both a dolly and a beam by prying it over with a lever or crowbar, and a second count alleged a negligent order given by a foreman codefendant, and a third count alleged that defendants failed to warn plaintiff of the fact of the sidewise movement and of the danger, the evidence is held to support a finding by the jury that the method adopted was unsafe and negligent, the testimony of the rough condition of the street being admissible under the averments of the different counts. 3. Master and servant, § 627*—when opinion evidence as to safety of a method adopdted is incompetent. Direct evidence of the opinion of witnesses suggested by defendants as necessary to whether a method adopted to move sidewise a dolly and a beam over a rough street, by prying it over with a lever or crowbar, was incompetent as being a clear invasion of the province of the jury. 4. Master and servant, § 178*—when master negligent in adopting unsafe method of work. Where a codefendant foreman selected a method of moving a dolly and a beam over a rough street and he knew all the conditions existing and the danger attendant upon such a method and the positions of the men including the plaintiff, the jury were warranted in finding that the method adopted was dangerous and negligent, that the order given by the codefendant was negligently given, that the codefendant represented the other defendant, a corporation, and that plaintiff did not hear or know of the order and was not warned by the codefendant foreman. 5. Master and servant, § 375*—rule as to assumption of risk. For the application of the principle of assumption of risk, the employee must have knowledge of the danger to which he is subjected. 6. Master and servant, § 304*—risks not assumed. The servant does not assume risks arising from the master’s negligence. 7. Negligence, § 74*—when one is not bound to anticipate negligence in another. The law does not impose a duty upon one to anticipate negligence in others, and the presumption of law is that every person will perform the duty enjoined by law or imposed by contract. 8. Master and servant, § 739*—when assumption of risk is question for the jury. The question of assumption of risk by an employee is one of fact for the jury, whose finding will not be disturbed, where the evidence does not call for a different conclusion. 9. Master and servant, § 777*—when instruction on proximate cause not misleading. An instruction to the effect that where the master is guilty of negligence, proximately causing an injury to a servant and without which the injury would not have occurred, it is immaterial, so far as the servant’s right to recover is concerned, if the negligence of a fellow-servant, if any, combined with the negligence of the master, if any, to produce or proximately contribute to the servant’s injury, held not erroneous as an abstract proposition, since there was but one injury and the jury could not have been misled. 10. Pleading, § 28*—necessity of pleading evidentiary facts. Evidentiary facts need not be pleaded in order to be admissible in evidence. 11. Master and servant, § 376*—admissibility of evidence. Held proper to show that no other beams had been moved sidewise by prying over the dolly and beam prior to the accident, as bearing upon an employee’s lack of notice of the negligent method of the work and indicating that he did not assume the risk arising from the method adopted. 12. Trial, § 223*--when the presence of a party’s family is not erroneous. In an action for personal injuries, the presence at the trial of plaintiff’s wife and son, who were excluded when objection was made,- held^ not to have affected the result of the trial such as to require a reversal. 13. Damages, § 241*—when a verdict will not be disturbed as excessive. In the absence of a showing of passion or prejudice, a verdict for four thousand dollars held not excessive in an action for personal injuries, since there is no hard and fast rule by which such damages can be measured.