Price v. Northern Electric R.R.

This is an action for damages for personal injuries. Plaintiff had judgment and defendant appealed to this court from such judgment and from an order denying its motion for a new trial.

The appeal was transferred by this court to the district court of appeal of the third district for hearing and determination, and subsequently submitted therein for decision. Owing to a difference of opinion among the members of that court, the appeal was retransferred to this court with the opinions in writing of the justices of that court. In what

Following the verdict of a jury, judgment was awarded plaintiff for the sum of two thousand five hundred dollars as. damages for personal injuries. The view that we must take of the facts reveals the following situation: Plaintiff was a carpenter, and, during the month of January, 1909, he was employed by defendant to assist in rebuilding its trestle and approach across the Yuba River, just south of Marysville. Immediately prior to the accident he was at work on a car fixing piles for the driver, that is, trimming the ends of piles so that rings could be driven on them in order that the pile driver would not split the piling. This ear upon which he was at work was on the approach of the railroad crossing Yuba River and was the third car behind the pile driver, the pile driver being at the end of the bridge toward Sacramento. While he was thus engaged, the defendant railway company had a gang of men at work building and erecting trestle bents on the south side of the Yuba River. This trestle was composed of bents made of a large mud sill at the bottom, one upright post extending from the center of the mud sill perpendicular and on each side a batter post. On top of these three posts was placed in horizontal position at quite a distance above the mud sill the cap which was composed of a large, heavy piece of timber. These bents were some fifteen or sixteen feet apart and on top of the caps were placed what was called the stringers, upon which were to be placed the cross ties, and on these the rails. The last bent at the edge of the water, south of the river, had been erected and was in place excepting that the cap had not been placed in position on top of the posts. A temporary scaffolding had been erected on the south end of this bent composed partly of two long pieces of timber some sixteen or eighteen feet in length and being in size four inches by six inches. One of these was laid parallel with the line of the railroad on each side of the bent and they were some eight or ten feet apart. The ends of these four by six pieces- rested on a short post ten or twelve inches high. These two pieces held the scaffold and they leaned against the batter posts. Upon these four by six pieces were placed railroad cross ties built up to form a platform for the purpose of raising the cap from the

In this connection much reliance is placed upon the case of Callan v. Bull, 113 Cal. 593 , [ 45 Pac. 1017 ]. We are of the opinion, however, that the principle of. that case is not applicable here. In this case, Price had nothing to do with the construction of the trestle bent, beyond helping, when called from his other work to do so, in putting on the cap. tie was then told to assist in getting the staging away. So far as he was concerned, the place of work to which he was brought, and where he was directed by .the foreman to assist, had already been created. He was working under the immediate supervision of a foreman, and was not erecting trestle bents or creating them on his own judgment and at his own risk. In the absence of actual knowledge to the contrary, or circumstances under which he would be held to be required to have such knowledge, he had the right to assume, .when directed to assist in removing the scaffolding, that the bent had been so braced that it would not fall when the scaffolding was removed. And it cannot be held as matter of law, under the circumstances, that he was guilty of contributory negligence in not observing the absence of bracing, however obvi-' ous that fact might have been if he had made an examination to see what the actual condition was. It must be borne in mind that he was suddenly called to assist in this work when the bent was practically completed, and that he was simply obeying orders of the foreman to do this particular thing and that particular thing, and that the men were being urged to work quickly.

There is evidence that the defendant, through its foreman, had knowledge of the insecure and unsafe condition of the bent in question. The witness Hudson testified, referring to the foreman, that “When he asked me to take down the

As said in the opinion prepared by Justice Burnett, we think the case is governed by the rule and principle announced in such cases as Elledge v. National City etc. Railway Co., 100 Cal. 282 , [ 38 Am. St. Rep. 290 , 34 Pac. 720 , 852]; Hanley v. California etc. Co., 127 Cal. 233 , [ 47 L. R. A. 597 , 59 Pac. 577 ]; Powley v. Swenson, 146 Cal. 471 , [ 80 Pac. 722 ], and Majors v. Connor, 162 Cal. 131 , [ 121 Pac. 371 ],

It is believed that there was sufficient evidence to' justify the jury in concluding that it was negligence on the part of defendant not to secure said bent; that the foreman had knowledge of its insecure condition; that the plaintiff was .ignorant of it and had a right to assume that it was a safe place in which to work; that he was not guilty of contributory negligence, under the circumstances, in undertaking the removal of the said timber, in obedience to the urgent command of the foreman, without making an examination to ascertain whether the bent was secure; and that a sufficient case was therefore made out, within the principles already announced, to justify the finding of the jury in favor of the plaintiff.

During the progress of the trial the plaintiff was asked by his counsel this question: “I will ask you to state if you were suffering from this injury when you went to work for the Diamond Match Company and Cotton Brothers?” An objection was made by the appellant on the ground that the question called for incompetent, immaterial, and irrelevant testimony and also for his opinion and conclusion. The objection was overruled and the witness answered: “Well, my capital is my labor and I have a family to support and I have got to work whether I suffer or not.” Appellant moved to strike out the answer as not responsive to the question and for all of the reasons stated in the objection to the question. The motion was denied.

It is clear that the question is one that called for an affirmative or negative answer and that the answer was not at

Witness Curran, called for plaintiff, was asked, on cross-examination, the following question: “Now, Mr. Curran, if you or any man of any experience in the construction of trestles should approach a section of the trestle which has been built, consisting of one or more bents, and they were not braced in any way, would that be a sign that it would be unsafe?” and the answer was, “Yes, sir.” And again— “Would that be discernible and appreciable to any man of any experience in that work the moment he went to the trestle to work? If they were not braced would he necessarily see that and notice that? A. Yes, sir.” And again: “So, then, the fact that a piece of trestle may have been constructed, or practically constructed, we will say, four or five, and not in any way braced, the dangerous character of that is not a hidden or secret one, is it ? It is open to the inspection of the eye? A. Yes, sir; it would be, of course.” On redirect examination, in response to a question by plaintiff, the witness stated: “A man in the business of trestle building would observe whether or not a bent was braced,” whereupon, plaintiff moved to “strike out the answers of the witness to Mr. Carlin’s questions as to whether or not that it would be where he answers that it would be observable, ’ ’ and the motion was granted. No objection was made to the questions asked upon cross-examination.

Of course, a party cannot lie by and take a chance upon an answer being favorable and, when disappointed, have a motion to strike out take the place of an objection. Besides, it will be observed that the questions on cross-examination related to a person of experience in trestle building and the further interrogatory on redirect examination did not change, in that particular, the aspect and significance of the inquiry. It is believed, though, that if any error was committed in this behalf the error was without prejudice as the answers to the questions were substantially the same as the simple inferences that would be drawn by the jury from facts in reference to the construction of said contrivance previously detailed by the witness.

It is claimed on this appeal that the statement of the court in denying the motion to strike out this testimony, was an invasion of the exclusive province of the jury to determine the credibility and good faith of the witness and the weight of his testimony, and that the same was prejudicially erroneous. It is clear enough to us that the judge did not intend to go further than to state the reason why the testimony was, in his mind, admissible, and that he had no idea of expressing any opinion as to the credibility or good faith of the witness, and, while the words of the court were not happily chosen, we are not strongly impressed with the argument that the jury may have been in any way influenced to the detriment of the defendant thereby. Counsel for defendant apparently did not regard the remark as injurious at the time it was made, for they made no complaint. As is stated in the opinion prepared by Justice Hart in the district court of appeal, no exception or objection to the remark was made in the lower court, objection being made on this appeal for the first time. It seems clear that counsel should have called the attention of the trial judge to anything deemed prejudicial, thus giving him an opportunity to withdraw anything objectionable and state his real intent and meaning. Of course, the matter was of such a nature that all possible prejudicial effect would have been obviated by proper instruction and admonition to' the jury.

We have examined the record with reference to the other rulings complained of, and find nothing warranting a reversal. The testimony of Mr. Curran to the effect that he would not consider the bent safe unless secured with bracing, if it was above five or six feet in- height, even if improperly admitted, we consider to have been without prejudice. It appears to have been conceded by all the witnesses that bracing of some kind was essential, and the evidence was such that if the jury was satisfied that there was no bracing, it could not conclude otherwise than that the scaffolding could not be safely removed unless the bent was first braced in some way. Instruction No. 2 given at the request of plaintiff reasonably construed was not erroneous as applied to the facts of the case. So construed we do not see how it could have been un

The judgment and order denying a new trial are affirmed.

Beatty, C. J., does not participate in the foregoing.

Sloss, J., being disqualified, does not participate in the foregoing.