Hunt v. Kile

Citation98 F. 49
Decision Date01 December 1899
Docket Number553.
PartiesHUNT v. KILE.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

In an action to recover for the death of a servant, where it appeared that all the parts of the apparatus used, except a rope safely performed their functions, their sufficiency or fitness is not a matter in issue, and it is error to submit such questions to the jury.

This suit was brought by the administrator of Eli M. Davis deceased, against Robert B. F. Peirce, receiver of the Toledo, St. Louis & Kansas City Railroad Company, to recover damages, under the statute of the state of Illinois, for the death of Eli M. Davis, alleged to have occurred through the negligence of the receiver of the railroad company, in failing to furnish proper and adequate machinery and appliances, and in furnishing improper and inadequate appliances, for use by Davis and his co-laborers in their work. The cause was previously before this court upon writ of error to review a judgment in favor of the defendant in error here, and is reported as Peirce v. Davis' Adm'r, 53 U.S.App. 291, 26 C.C.A. 201, 80 F. 865, to which reference is had for a statement of the facts in respect to the character of the appliances furnished, and the cause of the accident. The judgment was there reversed because breakage of the anchor rope was the only evidence produced and relied upon to establish the negligence of the master. Upon the retrial of the case in the court below the same evidence was offered as that given upon the first trial the additional evidence being in regard to the insufficiency and alleged dangerous character of the appliances furnished. The character of the additional testimony given is sufficiently stated in the opinion of the court. A verdict was again found for the plaintiff, and the judgment thereon is brought here for review. Pending the writ of error, Peirce resigned as receiver of the railway; and, by order of the court having jurisdiction of the matter, Samuel Hunt was appointed his successor, and by order of this court was substituted as plaintiff in error.

Clarence Brown, for plaintiff in error.

F. W Dundas, for defendant in error.

Before WOODS and JENKINS, Circuit Judges, and BUNN, District Judge.

JENKINS Circuit Judge, after the foregoing statement of the case, .

It is matter of regret that in this case we cannot extend the word of commendation expressed in Godkin v. Monahan, 53 U.S.App. 604, 619, 27 C.C.A. 410, 83 F. 116, with reference to the manner in which the record is presented to our consideration. The case was simple. The accident occurred by reason of the breaking of the anchor rope which let down the pile then being hauled up the skids, and Davis, struck by the falling pile, was instantly killed. The issues involved the insufficiency of the appliances furnished by the master for this work, and whether therein he exercised the care imposed upon him by the law. All of the appliances withstood the strain, with the exception of the anchor rope, and the inquiry was necessarily limited to the sufficiency of that rope for the work then in progress. There was perhaps the further question whether the master was negligent in failing to furnish chocks to protect Davis, who was behind the pile, using the pinch bar, from possible injury resulting from the breaking of any appliances, letting the pile down upon him. In asking this court to review the proceedings below, we are presented with a bill of exceptions of 223 printed pages,-- a copy of the stenographer's minutes of the trial. We are also presented with 150 assignments of errors asserted to have been made by the court below in a trial not extending over four days. A large part of the bill of exceptions is taken up with questions to and answers by five witnesses produced by the plaintiff below as expert witnesses. The right of each witness to give his opinion with respect to the character of the appliances and the manner of the performance of the work was duly objected to. These questions were long, hypothetical questions, based upon the facts of the case. The assignments of errors consist largely in the repetition of questions and answers of this character, propounded to and given by each witness. It does not seem to have occurred to counsel that one error well assigned is as effective as if often repeated, and that one assignment of such an error is quite as forceful as a hundred assignments of like errors. The proceedings on the trial could have been condensed and properly presented within at least one-tenth of the volume. It is unfair as well to the court as to the parties litigant to offer such a record,-- unfair to ask the court to unnecessarily wade through such a mass, unfair to the litigants to incur the unnecessary expense. We trust that these observations will correct a practice that is becoming too common in suits at law. We have upon more than one occasion spoken to this subject (United States Sugar Refinery v. Providence Steam & Gas Pipe Co., 18 U.S.App. 603, 10 C.C.A. 422, 62 F. 375; Association v. Lyman, 18 U.S.App. 507, 9 C.C.A. 104, 60 F. 498), and have also pointed out the correct practice by rule 10 (31 C.C.A. cxlv., 90 F. cxlv.), which must not be disregarded.

It is unnecessary to consider seriatim the many questions propounded to, and which the court allowed the witnesses called as experts to answer, with respect to their opinions upon the character and safety of the appliances in question. Any such discussion of them would greatly exceed the proper limits of an opinion. It is sufficient, as we think, to indicate in general terms our views of the questions to be determined, and of the character of the evidence by which they are to be resolved. Every one of the appliances furnished, with the exception of the anchor rope, performed the service for which it was designed. With that one exception, they withstood the strain put upon them, and approved themselves as fit, suitable, and safe instrumentalities for the purposes for which they were employed. It was therefore wholly immaterial-- assuming that the opinions of experts could properly be received--whether, in respect of such appliances as proved sufficient, other and better and safer appliances could have been employed. So, also, it was wholly irrelevant, with respect to the case in hand, whether the men hauling upon the tackle should have been placed upon one side or the other of the flat car; for, in either case, Davis, helping the pile over obstruction with his pinch bar, necessarily stood behind the pile. The simple and only question involved in the inquiry with regard to the character of the instrumentalities used was whether the anchor rope was sufficient, and to that the inquiry should have been limited. The record is replete with questions frequently repeated, and as often objected to, seeking the opinions of the several witnesses upon the character of the different appliances which had proved sufficient, and which were in no sense responsible for the accident. To permit such a course of examination presented to the consideration of the jury a false issue, and necessarily tended to confuse their minds, and might have led them to believe that a verdict could be found upon a general condemnation by the witnesses of all the instrumentalities employed; and this is rendered more probable in view of the very general character of the charge to the jury, and in the absence of any instruction directing their attention to the consideration of the one proximate cause of the injury,-- the breaking of the anchor rope. The questions to be determined were whether the anchor rope was a fit instrumentality, and whether the master had failed in the exercise of reasonable care to furnish a reasonably fit and safe instrumentality. The issue was to be resolved by the jury upon proper evidence, and under pertinent instructions by the court. The test of the master's liability in a case like that in hand is whether the appliance furnished was the ordinary and usual instrumentality in use for that purpose. If it be, then it cannot be said that the master has failed to exercise ordinary care with respect to the thing furnished. He is not obliged to supply something that in the opinion of another may be better. We have so ruled in Logging Co. v. Schneider, 34 U.S.App. 743, 749, 20 C.C.A. 390, 74 F. 195, where the principle is fully stated.

It was of course, proper for the plaintiff...

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