46 Cal. 409, 3,723, Malone v. Hawley

Docket Nº:3,723
Citation:46 Cal. 409
Opinion Judge:BELCHER, Judge
Party Name:JAMES MALONE v. MARCUS C. HAWLEY and GEORGE T. HAWLEY
Attorney:Sawyer & Ball, for Appellant. G. W. Tyler, for Respondent.
Judge Panel:JUDGES: Belcher, J.
Case Date:October 01, 1873
Court:Supreme Court of California
 
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Page 409

46 Cal. 409

JAMES MALONE

v.

MARCUS C. HAWLEY and GEORGE T. HAWLEY

No. 3,723

Supreme Court of California

October, 1873

Page 410

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Page 411

[Syllabus Material]

Page 412

Appeal from the District Court, Nineteenth Judicial District, City and County of San Francisco.

This was an action for damages. The plaintiff was employed in March, 1871, as an under-porter in the storehouse of the defendants, who were merchants in San Francisco. It was his duty to raise and lower goods from one story to another by means of a hoisting apparatus or " cage" worked by hand. The hook attached to the hoisting rope hooked into a staple on the cage, and mousings were placed on the hook to keep it from unhooking. There was no way of knowing when the cage reached the lower floor, except the person working it heard it strike the bottom, or saw the rope slack, which it did as soon as the cage struck the floor. When the rope slacked it twisted and was liable to throw the hook out of the staple, so that the weight of the cage and whatever was put on it while in that position would rest on the mousings when the cage was raised. On the tenth of October, 1871, while the plaintiff was loading the cage--the rope having twisted the hook out of the staple, the weight of the cage resting upon the mousings and broke them. The cage fell, and the plaintiff, who was pulling on the rope, fell to the lower floor as it slacked, breaking his leg, and rendering amputation necessary. He then brought this action, alleging that the apparatus was constructed in an unsafe manner and of unsound materials, and that the facts were known or might have been known to the defendants by the use of ordinary diligence. At the trial evidence was introduced to show that about a year before the plaintiff was employed in the store, the cage had fallen from the same cause as when the plaintiff was injured; that the falling was known to the defendants, but they did not remedy the defect or inform the plaintiff of it. The jury gave the plaintiff a verdict of six thousand five hundred dollars.

COUNSEL:

Sawyer & Ball, for Appellant.

The Court erred in permitting, against the objection of appellants, the respondent to prove the cage had fallen before, because it may have fallen from careless handling: Martinez v. Planel, 36 Cal. 578.

The Court erred in its charge, in leaving the amount of damages entirely to the judgment and discretion of the jury, so...

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