Powley v. Swensen

Action for damages resulting from the death of plaintiffs’ father, W. F. Powley, who, it is alleged, lost his life while in the employment of defendants through their fault. The cause was tried with a jury, and plaintiffs had the verdict, upon which the court entered judgment. Defendants appeal from the judgment and from the order denying their motion for a new trial, and bring the appeal here on bill of exceptions.

Defendants were contractors who had undertaken to construct a tunnel in the city of Los Angeles through a hill lying between Hill and Figueroa streets, being a projection of Third Street, and known as Third-Street Tunnel. Work was begun on both sides of the hill extending toward the center. The accident in question occurred within and near the westerly end or section of the tunnel. The plans for the tunnel included the construction of a strong retaining-wall against the face of the hill, whose purpose was to hold the earth in place and prevent it coming down into the street at the end of the tunnel. This retaining-wall extended entirely across Third Street, and to a height of about forty-three feet, and, to give it greater resistance, was built so as to lean

The complaint alleged that the accident occurred “by the neglect and failure of defendants to exercise ordinary care to properly brace and strengthen said tunnel at the point where the same caved,” and “ . . . to take proper or ordinary precautions in prosecuting said work as to render said westerly end of said tunnel safe, and thereby and by such negligence defendants failed to furnish said W. P. Powley with a safe place in which to work”; that “the said tunnel, at the point where the same caved in, as aforesaid, and the work therein, were of a dangerous character, and defendants did not exercise ordinary care and diligence to ascertain and apprehend the dangers thereof; and defendants negligently and carelessly failed to take measures for the protection of said Powley while he was working within said tunnel, as aforesaid, commensurate with the dangerous character of said tunnel, and the work therein.”

In addition to specific denials of the averments of the veri

The errors complained of will be noticed in the order presented in defendants’ brief.

1. Mrs. Colburn, mother andjguardian ad litem of plaintiffs, was asked the question: “Did you know what was his [Powley’s] average monthly contribution to their [the plaintiffs’] support at the time of his death?” to which she answered: “Thirty a month.” Counsel thereupon objected, as irrelevant and incompetent. Waiving the rule of practice which

2. At the close of plaintiffs’ evidence defendants moved to strike out all the testimony of City Engineer Dockweiler, on the ground that it had not been shown that the retaining-wall was built in accordance with the plans and specifications prepared in his office. The court denied the motion. It was in evidence that the plans and specifications for this wall were prepared in the city engineer’s office, and that it was erected under the direct supervision of an engineer officer of the city in the performance of official duty. Nothing at this point in the case tended to show that this wall was not constructed in accordance with plans and specifications, and presumably it was so constructed. In fact the wall stood the pressure, and was not defective save that it was not built against the earth. Whether built in accordance with the original plans seems not to be material, as the lower court held. But the ruling was correct on other grounds. Witness Dockweiler had testified to the condition and stratification of the earth above the tunnel; to the pitch of the shale toward the wall; to the loosening effect of water permeating this body of earth and shale; to the additional pressure and force .of a moving body of earth, and other facts. The motion was too general, for some of the testimony was clearly admissible regardless of the point made by defendants. The motion should have been directed with precision to the objectionable testimony if there was such. (Hellman v. McWilliams, 70 Cal. 449 .)

3. When on the witness-stand defendant Hill was asked why he paid Powley three dollars per day instead of $1.50 or $1.75, to which question plaintiffs objected. The court sustained the objection. The purpose of the question, as claimed by defendants, was to show that because Powley received more pay than other men it tended to show that he had “extra responsibility.” The witness had testified to the fact that Powley was paid three dollars, and other men $1.50 and

4. Towards the close of the trial defendants asked leave to amend their answer “to the effect that Mr. Powley had entire charge of the timbering in and about the tunnel.” Defendants in their answer allege that Powley was employed as foreman to supervise the work of excavation, direct the laborers on such work, and to superintend the placing of timbers at that part of the tunnel where the accident occurred. The issues presented in the pleadings were quite sufficient to admit of full proof as to what duties devolved upon Powley and what instructions were given him. Defendant Hill testified on the subject; and although some questions put to him by counsel for defendants after the refusal of the court to allow the amendment were objected to and refused, and exceptions taken, they were, owing to their form, within the discretion of the court to allow or refuse. These questions were in leading form and were intended to bring out the scope of Powley’s duties. The witness, however, jhad full opportunity to state the facts as to Powley’s employment, as did other witnesses, and, among other answers, defendant Hill stated that he gave Powley no instructions about the tunnel, and that Powley “was to take care of the whole tunnel.” Defendants were not prejudiced by the ruling of the court, if error be conceded.

5. A motion for nonsuit was made at the close of plaintiffs’ evidence, and it is urged should have been granted,—1. Because there was then no direct proof of Powley’s death;

2. That although there was evidence tending to show that the space - behind the retaining-wall was an element of danger, there is no evidence going to show that deceased was killed;

3. That the evidence showed that the moving cause of the accident was the leakage of the sewer above the tunnel, but that “there was no testimony-tending to show that defendants were responsible for that condition,- or that any act of omission of defendants was responsible for the sliding of the earth and-its precipitation into-the tunnel.” The testimony later on in the trial brought out quite fully the facts on these points. We think, however, when the motion was made

6. Defendants asked an instruction that the verdict must be for defendants, which the court refused to give. To show that this was error,, defendants now present in their brief a review of the entire evidence in the case. As we have already seen, the evidence given in favor of the plaintiffs was sufficient to justify the denial of the motion for a nonsuit. Our attention has not been called to any evidence on behalf of the defendants which has the effect of explaining or modifying the evidence of the plaintiffs, so as to destroy its effect. On the contrary, as stated, the evidence given later tended to supply the defects, such as they were, in the plaintiffs’ proof and fully justified the refusal to direct a verdict for the defendants.

If it is urged on the ground that the verdict is against law, the instruction cannot be upheld, because there was conflicting evidence as to material facts which the jury had the right to pass upon. (O’Connor v. Witherby, 111 Cal. 528 .)

7. Appellants object to instructions 4, 5, 6, 8, and 12. It is claimed that one special defense was that Powley was engaged by defendants as a timber man to take entire charge of the timbering, to take such steps as might be necessary to properly protect the work against just such an accident as did occur, and that defendants relied absolutely on his judgment and ability. The objection is that these instructions ignored this issue. Furthermore, that they were given on the theory that it was the duty of defendant to furnish a safe place for the employees tp work in. Instructions 4 and 5 are particularly pointed out as open to the objection made. Instruction 4 was: “It is the duty of a master or employer to furnish his servant or employee with a safe place to work, and to make provisions for the safety of his employees or servants as will protect them against the dangers incident to their employment.” Further along the court instructed the jury: “You are instructed‘that Swensen and Hill were not obliged to furnish the said Powley with an absolutely safe place to work in, or to make supports of the tunnel absolutely safe, but they were only required to use ordinary care to protect their, employees against accident,” etc. We do

Instruction 5 was as follows: “You are instructed that it is no part of the duty of a servant to inquire into the sufficiency of the provisions made by the master to furnish the servant with a safe place to work. The servant has a right to rely on the master in this regard because it is the master’s duty to provide a safe place in which to perform his work, and the servant may justly assume that the master has performed this duty.”

It is claimed that, under the pleadings, these were questions for the jury to determine which were taken away from them by the instructions. The juryj were fully instructed as to defendants’ theory of the case, and they were told that if they should “find from the evidence that Powley was employed to take charge of the timbering of the tunnel and that it was his duty to timber the tunnel and the spacés behind the retaining-wall so that the same should be safe, and secure from accident, and if you find from the evidence that there were materials and means provided for the proper timbering of the tunnel, and if you find from the evidence that the death of Powley would not have occurred but for defects or insufficiency in the timbering put in by him or under his direction, . . . the plaintiffs cannot recover. . . .” Other instructions pointing with equal directness to the defenses set up were given. We cannot see that the court invaded the functions of the jpry or took from them any questions which the law committed to them.

8. There was an instruction to the effect that where two or more persons jointly contribute to the injury, the injured party may sue one or all. It is objected that no question of joint liability arose in the case. There was a special defense interposed by defendants tending to fix the responsibility for the injury upon the city of Lojs Angeles. It is not claimed that the instruction stated an unsound rule of law. In view of the pleadings and the evidence given tending to fix the

9. The court instructed the jury that they might take with them for their “consideration the exhibits introduced in evidence and the pleadings in the case.” Objection to this instruction was made by defendants on the ground that “the pleadings were not proper to be considered by the jury in arriving at their verdict.” The record shows that the jury took with them the complaint and answer. Section 612 of the Code of Civil Procedure provides: “Upon retiring for deliberation, the jury may take with them all the papers which have been received as evidence in the cause, except depositions or copies of such papers as ought not, in the opinion of the court, to be taken from the person having them in possession; ...” Section 1137 of the Penal Code is similar in its provisions (although the phraseology differs somewhat), except that the jury “may also take with them the written instructions given.”

It does not appear that the pleadings or any part of them were read to the jury as evidence, nor does it appear that the jury read them after retiring. The Colorado code is similar to ours in its provision as to what papers may be given to the jury. In a civil action the defendant requested the court to send the pleadings with the jury on retiring. The claim was that defendant was entitled to have the admissions contained in plaintiffs’ complaint before the jury for consideration. The court said: “This assignment is not well taken. It would be a vicious practice indeed to require the pleadings to be sent out in order that the jury might determine as to what matters were admitted therein and what were not. If the pleadings in this case contained any admissioin that the defendant was entitled to have considered by the jury, he should have requested the court to have given an instruction to the jury setting forth the facts so admitted.” (Spaulding v. Saltial, 18 Colo. 86 .) In Drew v. Andrews, 8 Hun, 23 , the trial court, over defendants’ objection, directed the jury (they being unable to fix the amount of damages) to take the pleadings and return and fix the amount. They returned with an amount greater than claimed, after proven credits were allowed. The court said the pleadings were not evidence, and reversed the judgment. In that case,

It is advised that the judgment and order be affirmed.

Gray, C., and Smith, C., concurred.

For the reasons given in the foregoing opinion the judgment and order are affirmed.

McFarland, J., Van Dyke, J., Lorigan, J., Shaw, J., Angellotti, J., Henshaw, J.