Homestake Min. Co. v. Fullerton

’ THAYER, Circuit Judge, after stating the case as above, delivered the opinion of the court. At the close of all the evidence the defendant, by its counsel, moved the court to direct the jury to return a verdict in its favor for the following reasons: “First, Unit the uncontradictod evidence in the case shows that there was no negligence on the part of (he defendant; second, that the uncontradictod evidence in the ease shows that the negligence of the plaintiff contributed to his injury; third, that there is no evidence in the case tending to show that Joseph Treweek, whom the plaintiff claims made the promise to plaintiff to box the shaft, had any authority from the defendant to make any such promise, or showing that Treweek was either a general or special vice principal of the defendant for the purpose alleged in the complaint.” The refusal of the court to grant this request presents the principal questions that we have to determine. ■ With reference to the first of the three propositions embodied in the foregoing instruction, it is sufficient to say that we entertain the — 926 — opinion that the proposition in question was clearly untenable, and that the court would have erred, had it undertaken to. declare, as a matter of law, that there was no evidence tending to show, or from which a jury could rightfully infer, that the defendant had been guilty of a want of reasonable or ordinary care. It must be borne in mind that the line shaft was located in a narrow and dark tunnel; that it revolved with great rapidity; that the coupling with protruding bolts was very near to one of the cross timbers; that a person required to pass at intervals through the tunnel, and to stoop-or crawl under this cross timber, would be inevitably exposed to the risk of having his clothing caught by the coupling, and of being horribly injured,—a risk that could easily have been avoided without expense to the defendant company, and without interfering with the operation of its machinery, by simply covering the coupling. These facts were amply sufficient, we think, to warrant a jury in finding that the defendant company was not without fault, and that in the exercise of ordinary care, in view of the location of the line shaft and coupling, it ought to have boxed the coupling, or to have made a passageway so that its employés could have passed that point in the tunnel without encountering on every occasion the peculiar danger above described. No error was committed, therefore, in submitting the issue of the defendant’s negligence to the jury, and in refusing to decide it as a question of law. The second proposition contained in the instruction,—that the uncontradicted evidence in the case showed that the plaintiff was guilty of contributory negligence,—in our judgment, was likewise untenable, and was properly overruled. The defendant seems to have contended, in the course of the trial.—First, that the plaintiff was not required or expected, in the discharge of his duties as engineer, to pass through the tunnel, either to oil or examine the bearings of the line shaft, when the machinery was in motion; second, that a safer way had been provided by the defendant company to reach the particular bearing that the plaintiff was attempting to reach when he was hurt than the one actually taken; and, third, that the plaintiff was guilty of carelessness at the moment he attempted to rise to an upright posture after crawling under the cross timber next to the coupling. Considerable testimony was offered to support the first two of these propositions. On the other hand, considerable evidence was introduced which tended to. prove that the defendant did both expect and require its engineers to examine and oil the- bearings while the line shaft was in motion; that the actual operations of the machinery could be best observed when it was in motion; that the route taken by the plaintiff on the occasiofi of the accident to reach and examine the bearings was, as the defendant well knew, the one usually taken by its engineers for that purpose; and that on the occasion of the accident no other mode of reaching the back bearings, which the plaintiff desired to reach, was known to him. None of the alleged facts above mentioned, oh which the defendant predicated its charge of contributory negligence, can be said to have been undisputed. On the contrary, the specific facts on which the — 927 — charge in question was based were contested, and the evidence was conflicting. Under these circumstances, the circuit court submitted to the jury, by instructions which are not subject to criticism, the several issues, whether it was plaintiffs duty to examine the bearings of the shaft while it was in motion, whether he took the proper route to make such examination, and whether he acted at the moment of the accident with a due degree of care and circumspection. The finding of the jury on each of these issues must have been in favor of the plaintiff, and it goes without saying that such findings are not subject to review by this court.. This brings us to a consideration of the third proposition stated in the foregoing instruction, namely, that there was no evidence that Joseph Treweek, the foreman of the mine, had authority to give the assurance or make the promise that the shaft coupling should be covered or boxed. The circuit court not only refused to give this instruction, but it charged to the contrary thereof, as follows: “If tlie jury believe from tlie evidence tliat tlie plaintiff, William Fullerton, after discovering or recognizing tlie danger of passing tlie coupling on tlie shaft in question, complained to the proper officer of the Homestake Mining Company (and the court charges you, as a matter of law, that, under the evidence in this case, Joseph Treweek was such officer) of the dangerous condition of the shaft and coupling by which plaintiff had to pass in oiling and examining the bearings on said shaft, and the jury further finds from the evidence that said Joseph Treweek promised the plaintiff, William Fullerton, that the dangerous character of said shaft and coupling would be remedied, and the jury further find that said William Fullerton continued to perform (he services in which he was engaged in reliance on said promise, then the plaintiff, William Fullerton, is entitled to recover damages for any injury inflicted upon him, without his fault, by reason of the dangerous condition of said shaft and coupling, within any period after said promise was made which would not preclude all reasonable expectation that the promise would be kept.” As an exception was taken to the action of the trial court in both of the respects last stated, it will be proper to consider them together. The main proposition stated in the foregoing instruction is not disputed, namely, that a servant may successfully maintain an action for injuries sustained by using defective machinery or appliances after he became aware of tbe defect therein and the danger incident thereto, provided it appears that he notified the master of the defect prior to the injury, and the hitter directed him to continue using such machinery, and at the same time promised to repair it, and provided, further, that the servant exercised due care, and that the defect complained of did not render the machinery so imminently and immediately dangerous that he should have declined to use it at all until it was repaired. It is not denied, as we understand, that tills principle lias become firmly embedded in the law of negligence by numerous decisions of courts of last resort. Hough v. Railway Co., 100 U. S. 213, 225; Clarke v. Holmes, 7 Hurl. & N. 937, 938; Gowen v. Harley, 12 U. S. App. 574, 586, 6 C. C. A. 190, 56 Fed. 973; Laning v. Railroad Co., 49 N. Y. 521; Stephenson v. Duncan, 73 Wis. 404, 41 N. W. 337; Patterson v. Railroad Co., 76 Pa. St. 389; Greenleaf v. Railroad Co., 33 Iowa, 52; Railway Co. v. Watson, 114 Ind. 20, 27, 14 N. E. 721, and 15 N. E. 824; Greene v. Railway Co., 31 Minn. 248, 17 N. W. 378; — 928 — Railroad Co. v. Young, 1 U. S. App. 96, 1 C. C. A. 428, 49 Fed. 723; Rothenberger v. Milling Co. (Minn.) 59 N. W. 531. The contention is, however, that there was no evidence that the complaint made by the plaintiff relative to the dangerous condition of the coupling was addressed to the right person, and for that reason it is insisted that the promise made by Treweek to correr or box the coupling was of no avail to the plaintiff as an excuse for continuing in the defendant’s service, and continuing to pass by the uncovered coupling, after he became aware of the danger incident thereto, and that by so remaining in its service he assumed all the known risks of the employment. We apprehend that if it was fairly within the scope of Treweek’s authority, as foreman, to cause a board covering to be placed over the coupling of the line shaft, then a promise made by him to a subordinate servant to cover the coupling, in response to a complaint that it was dangerous, must be given the same effect as a like promise made by the defendant itself. And it must be conceded that a like promise made by the defendant would serve to rebut the presumption that the plaintiff intended to assume the risk which he had pointed out. The question is not whether Treweek- was a vice principal in such sense that the defendant company would be liable to its employés for all of his negligent acts, but whether his functions were such that he had the right, in the discharge of his duties and in the exercise of his judgment and discretion, to cause the shaft coupling to be covered. If he had such right, •then we think that the plaintiff could properly address his complaint to Treweek, and rely on the latter’s promise to remedy the existing defect without preferring his complaint to, or seeking a promise from, any one higher in authority. Now, the undisputed facts which have a bearing on the question last suggested were as follows: The defendant company was a corporation of California, having its chief office in that state. It owned and operated five or six mines in the state of South Dakota, and, among others, the Homestake Mine, where the injuries complained of were sustained. It had an agent in the latter state, by the name of Grier, who had general charge of the defendant company’s business in South Dakota, and was termed its "general superintendent.” The operations of the defendant company were so extensive that it found it necessary to maintain and operate a machine shop in South Dakota, both for the construction and repair of such mining machinery as was needed and used at its several mines. This shop was in charge of a master mechanic by the name of Spargo, who, in addition to his duties as master mechanic, had general charge, as it seems, of the machinery of the Black Hills & Ft. Pierre Railroad Company. Joseph Treweek was day foreman of the Homestake Mine, and in that capacity had power to hire and discharge men, to direct them where and how to work, and generally to control all the ordinary daily operations at the Homestake Mine. When on duty at the mine he seems to have been the representative of the defendant company, with whom all the employés who were engaged in taking out, handling, and crushing ore came immediately in contact, and from whom they received — 929 — their orders. The testimony showed that on one occasion, shortly before the accident, the plaintiff had requested Treweek to remove a projecting piece or point of rock at the entrance of the aforesaid tunnel, which rendered it difficult and dangerous for the engineers to pass by the belting when they had occasion to enter the tunnel to examine the bearings of the line shaft, and that Treweek, as foreman, promised to remove the rock, and immediately thereafter caused it to be removed. In view of these facts, we think it is manifest that Treweek had the right to cause an ordinary board covering to be placed over the coupling of the line shaft, for the purpose of rendering it more safe, without consulting the company or any of its superior officers. It was an act that did not require a previous conference either with the general superintendent, or the master mechanic, because it. did not involve any alteration of the machinery, or interfere to any extent with its operation. When the defendant company appointed Treweek as its foreman, it no doubt intended that he should exercise Ms judgment and discretion with respect to the propriety of placing a covering over exposed parts of the machinery, of which complaint was made to him that they endangered the safety of those employes who frequently had occasion to pass in close proximity to the saíne. Unless he had such authority in his capacity as foreman, he would be powerless to guard the company’s interests as it is doubtless expected tha t they would be guarded. At all events, we entertain no doubt that it was within the apparent scope of Treweek’s authority to hear complaints touching such a defect as was pointed out by the plaintiff, and that it was also within the apparent scope of his authority to promise that it should be remedied. It results from these views that no error was committed by the trial court in charging the jury as it did on this branch of the (‘ase, and in refusing to charge as the defendant company requested. It is further contended by counsel for the defendant company that, notwithstanding the promise made by its foreman to covin' the exposed coupling, the plaintiff should nevertheless be held to have assumed the risk incident thereto, because the promise in question was not a promise to repair an existing defect in machinery, but rather a promise to supply a new or additional appliance, which the company was under no obligation to furnish, no mat ter how necessary the same might have been for the protection of its employes. We think that lilis proposition is wholly untenable. It is doubtless true that a master is not bound to abandon the use of a particular machine or appliance, which is in common use, and in a proper state of repair, merely because there are other machines or appliances in use that are better adapted for doing die work, or that may be handled with greater safetv. Marsh v. Chickering. 101 N. Y. 396, 5 N. E. 56; Burke v. Witherbee, 98 N. Y. 562; Railway Co. v. Linney. 19 U. S. App. 315, 7 C. C. A. 656, 59 Fed. 45. In view of the undisputed fact that the kind of coupling appliance which was attached to the line shaft when the accident occurred was then in very general use, the doctrine invoked, and the authorities cited by the defendant in support of its last-men — 930 — tioned contention, would doubtless relieve it from liability for using that kind of coupling appliance, although a safer and better coupling appliance might have been used to connect the line shaft. But the doctrine in question cannot be successfully invoked for the purpose of relieving an employer of the duty of placing a suitable guard around a piece of machinery or an appliance which is of that nature, or so located, that it is a constant menace to the safety of those who, in the discharge- of their duties, are frequently compelled to pass in close proximity to it. In such a case the obligation of the master to place a suitable guard around a dangerous piece of machinery is no less imperative than his duty to remedy a defect in the machine itself. Passing to another branch of the case, complaint is made that the trial court refused to permit the plaintiff, William Fullerton, to answer the last three of the following questions which were propounded to him in the following order on his cross-examination: “Q. Have you not been told by your counsel that your whole case'depended on your swearing that Joseph Treweek made you this promise? A. No, sir. Q. Don’t you know the fact that your whole case depended upon it? Q. Don't you know, Mr. Fullerton, that your whole case depends—and did you not know before you brought this suit—upon proving, or convincing the jury, that Joseph Treweek made certain promises about boxing in that coupling? Q. Do you not know now, Mr. Fullerton, and are you not conscious, that your whole case depends upon your stating what Joseph Treweek, the day foreman of the mine, promised you with reference to boxing that coupling shaft?” These questions were obviously asked for the purpose of.impeaching the credibility of the witness. From a critical standpoint, they were objectionable in form, and the objection thereto was doubtless sustained, because they called upon the witness to declare, as a matter of law, upon whát ground the right to recover depended. As the questions, taken literally, were founded on the assumption that the controversy over the alleged promise to box the coupling was the sole issue in the case, possibly the jury might have been misled if the questions, in that form, had passed unchallenged. By altering the form of the questions so as to inquire concerning the belief entertained by the witness at the time of bringing his suit and at the time of giving his testimony, the objection interposed would have been obviated. And if the questions had been modified as last suggested, and the trial court had then declined to permit the witness to answer, the exception would have been entitled to more weight. Trial courts should be allowed a liberal discretion in determining the latitude to be given to a cross-examination, and particularly in determining the form in which questions should be propounded to a witness which are simply designed to impeach his credibility. We are not prepared to say, therefore, that the trial court exceeded its discretionary powers in sustaining the objection to the several questions above quoted. Moreover, as the court permitted the witness to answer the first of the above questions, we feel satisfied that its refusal to permit the remaining questions to be answered had no material effect on the ultimate issue of the trial. Complaint is also made that the court refused to give certain other instructions which were asked by the defendant company. But a careful examination of the charge given by the trial judge satisfies us that — 931 — the substance of all the refused instructions was given, in so far as they were proper instructions, and were not calculated to mislead the jury. Tlie jury seem to have been very fully instructed on all the salient features of the case, and it would have served no useful purpose to have given a number of instructions that were asked by the defendant which were perhaps unobjectionable. One instruction asked by the defendant requested the court to declare, in substance, that it was tlie duty of the plaintiff himself to have boxed the coupling, if he considered it dangerous and if he could have boxed it in connection with the discharge of his .other duties, and that by failing to do so he assumed the risk of getting hurt. No error was committed, however, in refusing ihis request. The work of boxing the coupling pertained to the carpenter department. The foreman, Treweek, recognized that fact when the danger was pointed out to him, by promising to send the carpenters to cover it. The plaintiff, we think, was under no obligation to turn aside from his ordinary duties, and construct a box to cover the coupling, especially after the foreman’s attention was called to the alleged defect, and he had promised to send the carpenters to cover it; and he cannot be said to have assumed the risk of injury because he failed to do so. The danger complained of could not be remedied by merely driving a nail or inserting a screw to render a simple tool or appliance more secure, but it involved the selection of materials, and the expenditure of some time, labor, and skill, to wholly obviate the danger. It is finally insisted by the defendant that the damages assessed by the jury are excessive, and that the verdict ought to be set aside for that reason. The circuit court had an undoubted right to set aside the verdict and order a new trial, and it should have exercised that power if, in view of the amount of the recovery, it was satisfied that the jury had been influenced by prejudice or passion, or that they had made a gross mistake of fact in assessing the damages. It is needless to say, however, that we are not possessed of any such revisory power, inasmuch as the damages assessed are less than the sum alleged and claimed in the complaint. This court is limited to the inquiry whether the jury was properly directed as to the mode of assessing the damages. Railroad Co. v. Fraloff, 100 U. S. 24, 31; New York, L. E. & W. R. Co. v. Winter’s Adm’r, 143 U. S. 60, 75, 12 Sup. Ct. 356; Lincoln v. Power, 151 U. S. 436, 14 Sup. Ct. 387. The charge of the court on that branch of the case was as follows, and we are not able to say that it was substantially erroneous: “If you find for tie plaintiff, you will allow Mm what lawyers call ‘compensatory damages’; that is, damages for his loss of limbs, loss of time, and for the pain endured by the accident. You are the sole judges of this amount. There is no rule to govern you in such cases but your own good judgment and sound discretion. A great and wise judge has said, there is no price current for human pain and suffering. You cannot give any exemplary damages. If this plaintiff is entitled to recover, his recovery is limited to compensatory damages. Your verdict should not be influenced by passion or prejudice. Tlie defendant has the same rights that any private individual has.” Finding no error in this part of the charge, nor in the record, considered as a whole, which, in our opinion, would warrant ns in disturbing the verdict, the judgment of the circuit court must be affirmed.