Fonts v. Southern Pacific Co.

Appellant has not pointed out any inaccuracy in the statement of facts as made by respondent, and it may be accepted substantially as the basis for a consideration of the legal questions argued by counsel. That statement, as far as any conflict exists, is the deduction from the testi

The gist of plaintiff’s claim from the foregoing facts is that, “Defendant company failed to supply Forsyth with sufficient men to properly lift the bar down. Forsyth failed to warn the men of what he was going to do, but instead allowed the men to remain grouped around the shafting while he kept his intentions entirely to himself, raised the bar on to the steel shafting, and caused it to fall down. Forsyth failed to explain to his men the method of work he was going to follow, and allowed all of them to believe that he would cease pinching before the shafting reached the apron and to believe that the bar would be lifted down from the car window rather than to be suddenly precipitated to the floor. He alone knowing that he was going to put the smooth steel shafting upon the smooth steel apron failed to take reasonable or any precautions to prevent this slippery piece of smooth shafting from falling upon the men grouped around it. The

We think in the particular thus pointed out by respondent there is presented a sufficient case of negligence, within the purview of the authorities, to warrant the finding of the jury In fact, it appears to us that Forsyth is chargeable with a high degree of carelessness in failing to give warning to the workmen of his intention. Of course, he may have believed, and had cause to believe, that they were not ignorant of his purpose, but we cannot so accept the facts. The want of knowledge on the part of plaintiff and the failure of Forsyth to apprise him of what the foreman intended to do seem to be the vital features in the case as far as the liability of defendant is concerned.

Appellant argues, with force and zeal, that the danger was so obvious that the injury must be said to be the result of respondent’s own gross and stupid negligence. This view, however, assumes that he had knowledge of the conditions that made the danger imminent and manifest. This assumption, however, as we view it, constitutes the false premise in appellant’s argument. There is room for the inference, let us repeat, that not only did plaintiff have no intimation or knowledge that Forsyth intended or was about to raise the end of the bar on to the apron, but he had reason to believe that an entirely different method would be adopted.

In addition to the foregoing contention many points are made by appellant, some of which, presented in the opening brief, are apparently abandoned in the closing argument, and will, therefore, receive no specific attention.

Among the incidents of the trial — quite out of the ordinary, we should say — is what respondent denominates the “fainting episode.” Plaintiff, while on the witness-stand, lost consciousness and fell from his chair. The contention in brief is that this circumstance must have excited the sympathy of the jury, which controlled, or at least influenced, their verdict. In the morning he had been on the stand for some time, within which he had exhibited his injured foot to the jury. In the afternoon he had undergone a searching cross-examination for probably an hour when the unfortunate incident occurred. Defendant did not complain of it for sev

Respondent charges the incident to the menacing conduct of appellant’s counsel, and claims that if any detriment was suffered thereby they are responsible for it. It is also argued that, under the peculiar circumstances developed by the cross-examination, the temporary collapse of the witness probably injured his own cause rather than that of his adversary. From a reading of the record we are not justified in holding that there was anything improper in the conduct of said counsel, but we can readily understand how a plaintiff, unacquainted with court proceedings, nervous from sickness and suffering, unfamiliar with our language and naturally timorous under the influence of a strange judicial investigation, might necessarily misconstrue what was said and done, and be affected thereby as grievously as is claimed. However, we need not pursue the subject, as, of course, we cannot say that the verdict of the jury was influenced thereby. The presumption is, manifestly, that they regarded their oaths and determined the cause according to the law and the evidence. If there had been simulation on the part of plaintiff or - other intentional misconduct, the case would be obviously different. But to grant a new trial in consequence of the unavoidable illness of plaintiff, sudden though it be and in the presence of the jury, would certainly be something novel in the history of judicial proceedings.

One of the considerations in the case treated most seriously grows out of the action of the court in overruling the objection of appellant to a question propounded to one James Henneberry, an experienced drayman. The interrogatory is of considerable length, reciting the facts as to the freight-car, the length and weight of the shaft, its position resting upon the window and the floor of the car, the position of the sheet-iron apron, the act in moving the lower end of said shaft toward the door of the car and culminating in throwing said shaft on to said apron, nothing else being done in the way of anchoring the shaft or preventing it from slipping, and concluding: “That on either side of this piece of shafting were stationed seven men, besides one who was doing the prying with that bar; it being the plan, after having lifted this shaft into the window, to take it down

The first objection going to the hypothetical character of the question is not pressed, and we may pass it by with the remark that a basis for the question is found in the record. The second objection, viz., that the matter about which the witness was asked to give his opinion is not among those subjects as to which expert testimony is necessary and allowable, is not, in our opinion, well taken. The general rule is, of course, “that the opinions of witnesses are never to be received as evidence where all the facts upon which such opinions are founded can be ascertained and made intelligible to the court or jury.” (1 Greenleaf on Evidence, sec. 441b.) Or, as the proposition was clearly stated by Campbell, J., in Evans v. People, 12 Mich. 35 : “Where the court or jury can make their own deductions they shall not be made by those testifying. In all cases, therefore, where it is possible to inform the jury fully enough to enable them to dispense with the opinions or deductions of witnesses from things noticed by themselves or described by others, such opinions or deductions should not be received.”

The conclusion thus reached upon this point is, we think, sustained by the cases. A few of these we may well refer to.

In Dyas v. Southern Pacific Co., 140 Cal. 296 , [ 73 Pac. 972 ], the plaintiff was injured by an insecure derrick, and the court held that “derricks, being of such limited use and complicated construction that an ordinary person is not familiar therewith, civil engineers of long experience who are familiar with the mechanical principles on which they are constructed and operated and with their strength and use, are competent to testify as expert witnesses in relation thereto and as to the sufficiency and security of the counterbalancing and fastening of the derrick in question.” The case is an instructive one, and sets forth clearly the principle upon which such evidence is admitted.

Snyder v. Holt Mfg. Co., 134 Cal. 324 , [ 66 Pac. 311 ], was an action for personal injuries, caused by reason of the separation of a defective bolt and nut used to connect the header and separator in a sidehill combined harvester, manufactured for and sold to the plaintiff by the defendant, and it was held that “the question whether the bolt and nut were proper and

In Silveira v. Iversen, 128 Cal. 187 , 190, [ 60 Pac. 688 ], it was held proper to ask a witness: “How can it be determined, Mr. Erickson, whether a rope has become rotten and unsound ? ’ ’

In Callan v. Bull, 113 Cal. 593 , [ 45 Pac. 1017 ], plaintiff was injured through the negligent construction of a jetty, and witnesses were called as experts in his behalf for the purpose of showing that the structure to which a certain mat was suspended was not properly constructed to sustain the weight of the mat, and also to show what weight a cap of the dimensions of the one in question would sustain. These questions were objected to by the defendant, upon the ground that it was for the jury to determine, from the facts that might be shown in the case, whether the structure was properly made. But the supreme court said: 11 These objections were properly overruled. The matters sought to be shown by these witnesses . . . were matters not presumably within the common knowledge of men, and were eminently proper to be shown by those who had made these subjects a matter of special study. (Prendible v. Connecticut River Mfg. Co., 160 Mass. 131 , [ 35 N. E. 675 ].)”

In Howland v. Oakland Consol. St. Ry. Co., 110 Cal. 513 , [ 42 Pac. 983 ], expert testimony was admitted as to whether defendant’s' car could, with proper care and attention, have been stopped in time to avoid a collision and the supreme court said: “Nor is there any question but that the subject was one upon which the opinion of the witness was admissible. The manner of running electric ears, their rate of speed and the facility with which they can be stopped or handled, is not a matter of such common knowledge that the jury could judge as intelligently as one skilled in their use. It was, therefore, proper to resort to expert evidence.”

Mulholland v. Western Gas Construction Co., 21 Cal. App. 44 , [ 131 Pac. 110 ], involved personal injuries through the explosion of a scrubber in a plant, and a witness was permitted to answer over objection these questions: “Is it proper, considering the safety of employees, to equip a scrubber without steam pipes?” “What is necessary to make a plant reason

In McLain v. Dahlstrom Metallic Door Co., 19 Cal. App. 475 , [ 126 Pac. 391 ], plaintiff was injured by an insecure elevator, and it was held that the lower court properly allowed evidence to show the insecurity of a knot such as that shown, and the mode of tying knots in such a way as to prevent slipping and accident, which is proper matter of skill, and to show the weakness which was apparent from an inspection of the insecure knot, if had.

In Colsh v. Chicago R. R. Co., 149 Iowa, 176 , [Ann. Cas. 1912C, 915, 34 L. R. A. (N. S.) 1013 , 127 N. W. 198 ], it was declared that expert testimony is admissible on the question of the proper loading of livestock in a car.

In Leslie v. Granite Ry. Co., 172 Mass. 468 , [ 52 N. E. 542 ], it was held that an expert can testify as to the methods of handling heavy stones with a derrick.

In Smith v. Dow, 43 Wash. 407 , [ 86 Pac. 555 ], the court declared that an expert may state that the method used in tying lumber for hoisting was not safe.

In Palmquist v. Mine & Smelter Co., 25 Utah, 257 , [ 70 Pac. 994 ], it was held, in an action for personal injury alleged to have been sustained in moving a boiler, that expert evidence as to the proper method of moving boilers and the appliances ordinarily connected therewith is competent.

For further illustration of the application of the rule permitting opinion testimony, we refer to the following cases: Zarnik v. Reiss Coal Co., 133 Wis. 290 , [ 113 N. W. 752 ] ; Alabama So. Ry. v. Vail, 155 Ala. 382 , [ 46 South. 587 ] ; O’Brien v. Look, 171 Mass. 36 , [ 50 N. E. 458 ]; Wolfe v. Mosler Safe Co., 139 App. Div. 848 , [ 124 N. Y. Supp. 541 ], a case which, on its facts, is strikingly similar to the case at

Counsel for the appellant cite many cases which, they insist, support the view that the opinion of the witness, Henneberry, was upon a matter within the knowledge of the jury, or, in other words, not within the range of those subjects upon which the opinions of experts may be received. We need not take the time to review herein all those cases. It is sufficient to say that we have carefully read them and found no difficulty in distinguishing them from the present case. The facts are wholly different from those of this case. The opinion testimony which had been allowed by the trial courts in those cases and which the appellate courts held to be incompetent and inadmissible related to ordinary matters as to which the average person could form a correct opinion without the aid of the opinion of those claiming to have had special experience in such matters. For instance, it was held by the supreme court of Iowa that the opinion of a witness as to the number of men necessary properly and safely to move a locomotive tender loaded with coal by means of a pinch-bar was upon a matter which the jury themselves were competent to determine from a simple statement of the facts. (Cahow v. Chicago Ry. Co., 113 Iowa, 224 , [ 84 N. W. 1056 ].) And likewise, in an action wherein the plaintiff set up personal injury through the negligence of the defendant in not properly securing pipe which was being hoisted in bundles of six, it being claimed that the defendant had negligently failed to place bagging at the end of the bundle, and thus secured it so as to prevent the single piece from falling out, it was held that the opinion of a witness that the pipes were properly fastened was not admissible, the matter upon which such opinion was given not being such as to require the opinion of an expert. The court said that ‘ ‘ the witness could properly state the relative efficiency of different methods of hoisting the pipe; but when he was asked to state whether it was necessary in the proper performance of a duty, to attach bagging to the end of the pipes, he was asked a question which the jury could determine upon a statement of simple facts.” (New York Electric Co. v. Blair, 79 Fed. 896 , [ 25 C. C. A. 216 ].)

In the present case, it will be noted, the witness was not asked how many men would be required to move the shafting properly and with safety; nor (it may be added) was he asked

Counsel for the defendant, Southern Pacific Company, devote considerable space in their briefs in criticism of the alleged refusal by the trial court to grant their client’s alleged motion for a nonsuit. But a simple reply to the extended argument addressed to that proposition is to be found in the fact that while it appears that a motion for a nonsuit was made by the corporation, C. L. Best Gas Traction Company, which was joined with the Southern Pacific Company as a party defendant, and the same granted, it nowhere is made to appear in the record that the Southern Pacific Company made any such motion.

The next assignments involve attacks upon certain portions of the court’s charge to the jury and upon the action of the court in refusing to allow certain instructions proposed and requested by the defendant.

The first of the given instructions to which objection is made reads: “I instruct you that it is the duty of the master to exercise reasonable and ordinary care to adopt safe rules and methods of work, and that this is a personal duty which the master owes to its servant, and which cannot be delegated or transferred to another in such manner as to relieve it, the master, from responsibility thereof.”-

That said instruction contains a correct statement of a legal principle in the abstract, there can be no doubt; and we are unable to perceive why it is not a rule which may appropriately be stated in almost any case of personal injuries, where the latter are alleged to have been sustained by a servant through the negligence of his master while such servant

It has been declared by the text-writers and uniformly held by the courts that “it is the duty of railroad companies to exercise reasonable care in the matter of safeguarding and protecting their employees while engaged in the discharge of their duties as such against the negligence of common employees, or their own negligence through the operation of cars or other machinery, and to that end make, promulgate, and enforce reasonable rules for the government of their employees in the performance of their duties as such. ’ ’ (Payne v. Oakland Traction Co., 15 Cal. App. 127 , 144, [ 113 Pac. 1074 ,1081], and the authorities therein cited.) Of course, this rule is applicable only where the master is engaged in a complex or dangerous business, or a business the carrying on of which is, by reason of its intricate character and other conditions, itself dangerous to employees engaged in the work of actually prosecuting it; and, manifestly, whether in any particular case such rules should be made and promulgated must depend upon the nature or character of the business and the conditions necessarily surrounding the prosecution thereof.

But even if this were a case to which the rule above mentioned is not strictly applicable, we yet are unable to perceive in the instruction anything which renders it inapplicable to this case; for, as we read and construe it, the instruction, as before suggested, merely states a principle of law quite pertinent to nearly all cases in which an employee claims damages for personal injuries received while engaged in the performance of work for his employer. There, clearly, can be no doubt that, in any case, it is the duty of the master to use and employ all reasonable precautions for the safety of those in his service, and to that end provide his employees with the safest reasonably available methods and means which may be employed for carrying on the work. (Bush v. Wood, 8 Cal. App. 647 , 656, [ 97 Pac. 709 ]; Buzzell v. Laconia Man. Co., 48 Me. 113 , [ 77 Am. Dec. 212 ], and cases therein cited.) And this is in effect all that the above instruction declared to the jury. If the word “rules” was omitted from the instruction, no possible question could arise as to the applicability of the instruction to this or (as before suggested) almost any other case of personal injury which was sustained by a servant while prosecuting work assigned to him by his em

The next complaint of the appellant is aimed at the action of the court in reading to the jury several instructions in which it was stated, in substance, that, if they believed from the evidence that the method adopted for unloading the shafting or bar in question from the car was a perilous one, and “that the perils of the method so adopted were known to defendant’s foreman before or at the time of the accident, and believe that the plaintiff did not know and in the exercise of reasonable care should not have known of such peril, then it became the duty of such foreman or boss to notify the plain

One of the grounds of objection to the above instruction and others addressed to the same proposition is that thereby the court unqualifiedly and plainly told the jury that the duty to give warning rested on the defendant. It is further claimed that the instructions were wholly inappropriate to this case, since (so it is argued) the danger attending the act of unloading the heavy and unwieldy bar was so obvious that such danger must have been plainly patent to the plaintiff and the other workmen assisting in the work; hence, so it is urged, the instructions must be assumed, and held to have unduly influenced the jury against the defendant.

We are not prepared to acquiesce in the propositions so stated. A reading of the instructions will readily disclose that there exists no tangible ground for declaring that they did not fairly and plainly submit to the sole determination of the jury the question whether the facts were such as to have placed upon the defendant the duty of warning the plaintiff of the perils or hazards of the work in which he was temporarily engaged.

As to the second ground of objection to the instructions, we perceive no necessity for entering into an analysis of the situation as it is presented here to show that the doctrine of warning was, as we believe is true, pertinent to this case. Briefly, we may observe that there are considerations exposed by the evidence upon which the propriety of such instructions in this case may well and reasonably be maintained. The plaintiff, however, relied upon general negligence as well as upon alleged special acts of omission on the part of the defendant which constitute actionable negligence. The verdict is amply supported upon the theory of the general negligence set up in the complaint. Therefore, even if it were true and necessary to declare that warning by the foreman to the employees of certain unexpected perils necessarily arising in such a case, and which perils are obvious to experienced persons, but not so to the one inexperienced in such work, as the evidence shows the plaintiff to have been, was not among the duties legally resting upon the defendant in this case, yet, after an examination of the entire cause, including the evidence, we

Counsel for the appellant concede that no just fault can be found with that portion of the court’s charge in which it was declared that, if the C. L. Best Company loaned the plaintiff to the Southern Pacific Company for the special service of unloading the iron bar, and that the plaintiff came under the sole power of control and direction of the latter company, and that plaintiff expressly or impliedly "consented thereto, then and in that event the plaintiff for the time being became the servant of said Southern Pacific Company; but they insist that the court erred to the prejudice of their client by refusing to state the converse of that proposition as proposed in their own language. But, as we read the instruction upon that subject as proffered by the Southern Pacific .Company, it goes further than merely to state the converse of said rule upon a hypothetical or assumed situation for which there might be support in the evidence. It would have told the jury unqualifiedly and unconditionally that, upon the case as made, the plaintiff was not an employee and under the control of the Southern Pacific Company. Clearly, the instruction as so proposed is inconsistent with the one given, entered upon the domain of fact, and was properly refused.

Objections are urged against some other instructions dealing with other questions arising in the case. To these we deem it unnecessary to give special attention herein; for as to the action of the court with reference to the instructions, it is enough to say generally that we have carefully examined the entire charge of the court and have found that, generally speaking, it states all the principles of law pertinent to the issues with accuracy and clearness. And for this reason there is no ground for holding that the court erred in rejecting certain instructions proposed by the defendant. It is obviously true that a principle or rule of law, pertinent to the issues and once stated, is not required to be repeated in other portions of the charge. The rejected instructions in effect merely embraced a repetition of principles in different forms of language which the court announced and submitted to the jury.

The judgment and the order are affirmed.