Barber Asphalt Pav. Co. v. Odasz

LACOMBE, Circuit Judge (after stating the facts). There are 60 assignments of error, some of them involving several different propositions. To review them seriatim would he a mere academic discussion, since upon the facts conceded by defendant and proved by its own witness it must be assumed that an intelligent jury would render the same verdict already twice recorded. The experts called for defendant testified that a guard rail is generally used on elevated roads, trestles, and bridges; that it would he impossible to say how long it had been used, — probably since railroads have been built, — and that it was in common use before the accident; that the guard rail is put there so that, if the car runs off the track, it shall not run off the trestle, its object being that, when the wheel of the car lifts because of some obstruction on the track, the guard rail will guide the wheel back into its proper place again; that in most cases it is put on the inside of the rail, hut that, when the flanges of Hie wheels are on the outside of the rail, the guard is put on the outside. It hardly needs expert testimony to inform us that, to be reasonably efficient, the guard rail should he next to the flange, rather than next to the tread, nor that, there should he a substantial difference in height between the rail and the guard; otherwise, when the wheel lifts, even slightly, the guard will not engage with it to guide it hack. All this was well known, and a usual method of construction of trestles, long before the accident. There was a strip of planking bolted down on this trestle, and running continuously outside of the rails, tire flanges of the car wheels being on the inside. One witness for the defense testified that the planking which was supposed lo do duty as a guard rail was about half an inch higher than the rail itself; another testified that it was a quarter of au inch lower. In view of this testimony, which was given by defendant’s own witnesses, it is not difficult to reach a conclusion as to the cause of the accident, — either some sand spilled upon the track, or some jerk by the men moving the car, caused a wheel to “lift,” and, there being no sufficient guard rail next the flange to guide the wheel back to the track, the car moved on off the trestle. If all the testimony introduced by the plaintiff which defendant objects to as improper were excluded, and the charge conformed most closely to the law of master and servant, it is to he presumed that the verdict of any intelligent jury, deciding the question of fact as to reasonable care on the master’s part in furnishing a reasonably safe place for its servants to work in, would he the same as that already twice rendered in this cause. While we do not intimate that this review is sought for delay, nor that there are not fairly arguable assignments of error, the facts above set forth make it unnecessary to enter into any elaborate discussion of them. [756] Such of the assignments as are discussed in the points may be briefly adverted to. 1. The court allowed a sister of the plaintiff, who also testified as a witness, to act as interpreter, under objection and exception. The same person had acted as interpreter on the former trial without objection, and under the partieúlar circumstances we think it was within the discretion of the trial judge. Railroad v. Shenk, 131 Ill. 283, 23 N. E. 436. The practice, however, is not one to be encouraged, and it will usually be better to continue the cause until the services of a wholly disinterested interpreter can be secured. State v. Thompson (Wash.) 44 Pac. 533. 2. On the former appeal, judgment was reversed because evidence wasi admitted showing what changes had been made by defendant in the structure after the accident. The same evidence was introduced on the second trial, but under different circumstances. A witness for the defendant, describing the condition of the structure at the time of the accident, testified on the direct that there was a guard rail. Upon cross-examination plaintiff’s counsel asked him if it had not in fact been put there after the accident. 3. The contention that it was error not to direct a verdict for defendant has been already disposed of. 4. There was evidence given by some of the plaintiff’s witnesses that they had occasionally seen a guard chain used on such structures, by which the car was chained down to the trestle when being dumped. It did not appear that this was a usual or common appliance. It is assigned as error that the trial judge “submitted to the jury the question whether defendant was negligent in failing to provide a guard chain on its car.” It appears that the counsel for plaintiff, in his closing address to the jury, told them that he did not make any claim that defendant was negligent in not having a guard chain, on the strength of which statement defendant’s counsel asked the court to charge that the jury should disregard the testimony of plaintiff’s witnesses, and not consider the question of the guard chain at all. What plaintiff’s counsel may have said in his closing address has little to do with the question. A trial judge sums up the case to the jury upon the issues raised by the pleadings (modified as they may be by any stipulations or concessions formally entered upon the record) and upon the evidence, not upon the dissertations of counsel. The court instructed the jury that “the fact of there ever being such a chain used on such a car, is only to be considered by you as bearing on the question whether anything was necessary to keep the car on the track.” Of course, if there was a proper guard rail, nothing else was necessary, and, if they believed there was such a guard rail, the jury would, under the instruction, not be called upon to consider the question of the chain. In the next sentence, however, the court used language which might be construed as leaving it to the jury to say whether there should have been a chain. We are not satisfied, however, that defendant was harmed by such instruction. If there were really any doubt, upon the evidence, as to whether a usual and proper guard rail were wanting, the question presented by this assign [757] raent would be different. If the jury were warranted in finding there was such a guard rail, and so found, they should not have been allowed to speculate as to some unusual appliance which might possibly have been added. But, if they were satisfied that there was no usual and proper guard rail, that was enough to support their verdict, without any additional finding as to the absence of a chain; and, since the uncontradicted evidence showed that there was no such guard rail, we must assume that the jury so found, in which case any conclusion they may have reached upon the question of the chain would be immaterial. 5. We find no error in the rest of the charge. The jury were instructed, in substance, that the plaintiff was not entitled to an absolutely safe place to work in, but was entitled to one reasonably safe; that the duty of the defendant was to do what was reasonable in view of the situation and the danger; that defendant was to exert reasonable care, such as was to be expected from prudent men; and that, if the injury was caused solely by the carelessness of the men running the car, then the defendant would not he liable. The court was under no obligation to restate this in the precise language suggested by defendant. The judgment is affirmed.