Acme Cement Plaster Company v. Westman

• Decision Date: 26 March 1912
• Docket Number: 687
• Citation: 20 Wyo. 143,122 P. 89
• Parties: ACME CEMENT PLASTER COMPANY v. WESTMAN
• Court: Wyoming Supreme Court

122 P. 89

20 Wyo. 143

ACME CEMENT PLASTER COMPANY v. WESTMAN

No. 687

Supreme Court of Wyoming

March 26, 1912

ERROR to the District Court, Albany County; HON. CHARLES E CARPENTER, Judge.

The action was by Carl Westman against the Acme Cement Plaster Company for damages for injuries received by the plaintiff while employed as a fireman in the defendant's mill. The material facts are stated in the opinion. Judgment was rendered for the plaintiff, and defendant prosecuted error.

Reversed and remanded.

Nellis E. Corthell, C. P. Arnold, Herbert V. Lacey and John W Lacey, for plaintiff in error.

The several motions to make the petition more definite and certain should have been sustained. It was indefinite and uncertain with reference to the results of the injury complained of which, as appeared by the petition itself would require the production of expert evidence. Without a more definite statement of such results the defense could not properly be prepared. There is a general averment that the coal bin, the falling of which is alleged to have caused the injuries complained of, was defectively constructed and maintained, but that is restricted by other averments as to the particulars wherein the defects are supposed to have existed. Thus the general allegation is eliminated and the negligence is restricted to the particular defects alleged viz: that the upright posts supporting the bin were not fastened and were not able to withstand the lateral pressure. It is not alleged that such defective construction was the result of the negligence of defendant. There is an introductory averment that the injuries complained of occurred through the gross wilfulness and wanton carelessness and negligence of the defendant, but, in the form stated, that is not an averment of any negligent act. The petition upon which the cause was tried is therefore insufficient, and the request for a peremptory instruction in favor of defendant should have been granted. The evidence failed to establish negligence.

The court improperly permitted a physician to narrate certain matters which plaintiff had told him concerning his feelings of the past. They were things which the witness could not and did not know. The objection to the evidence should have beeen sustained. (Atlanta St. R. Co. v. Walker, (Ga.) 21 S.E. 48; Kelley v. R. Co., 80 Mich. 237.) It is not permissible for witnesses to testify to complaints or statements of physical condition or feelings made by an injured person in answer to a question, or which are narrative in their nature, and which are not a part of the res gestae. (Keller v. Town of Gilman, (Wis.) 66 N.W. 800; Bacon v. Charlton, 7 Cush. 581.)

It was error to permit the witness Henderson to read into the record certain matters from the pay-roll of the rolling mill, the original roll not being in the custody of the witness, but out of the state, and there being no testimony as to who kept the books or made the records, or that they were correctly kept, or that the witness had any knowledge of the transactions therein mentioned. (Butler v. Estrella Raisin Co., (Cal.) 56 P. 1040; Swan v. Thurman, (Mich.) 70 N.W. 1023; Carlton v. Carey, (Minn.) 86 N.W. 85; Kent v. Garvin, 1 Gray, 148; Chaffee & Co. v. U.S. 85 U.S. 516; Martin v. R. R. Co., 1 Wyo. 143; Hay v. Peterson, 6 Wyo. 419.) The error was particularly harmful and prejudicial because there was no other evidence upon which to base any computations as to the loss in wages sustained by the plaintiff below through his injuries.

The court gave an instruction which in fact stated and made applicable to the case the rule of res ipsa loquitur. That rule is inapplicable in a case like this, where the action is by one against his employer, and where the evidence showed a possible other cause for the falling of the structure, and does not disclose with certainty the exact cause of the falling. (Spees v. Boggs, (Pa.) 47 A. 875; Price v. Lehigh &c. R. Co. (Pa.) 51 A. 756; Kuhns v. Ry. Co., (Ia.) 31 N.W. 868; Ry. Co. v. Cook, (Ky.) 73 S.W. 765; Hofnauer v. White Co., (Mass.) 70 N.E. 1038; McGrath v. Transit Co., (Mo.) 94 S.W. 872.) Another instruction--No. 11--informed the jury that the only things necessary to the liability of the defendant were: First, That the plaintiff in error knew the dangers to which the defendant in error would be exposed while in his employment. Second, That the defendant knew the upright post was not fastened or secured by nails, screws, bolts, or in any manner whatsoever. Third, That defendant did not make known to the plaintiff his danger. Fourth, That the plaintiff received the injuries. Fifth, That the plaintiff was exercising ordinary care and was without fault at the time of the injuries. That instruction is erroneous. It assumes that there was danger to the plaintiff in his employment; that the failure to secure the upright post by nails, screws or bolts constituted a defect; that the defect was of such a character as constituted, if known to the company, negligence on its part; that the injuries were caused by that particular defect; that the accident was caused by negligence either of the defendant below or of the plaintiff, and not by a fellow servant or an independent contractor. The question whether or not there were defects was not submitted to the jury, nor were the jury permitted by the instruction to say whether the failure to secure the posts in the manner mentioned was a defect or otherwise, or that such defect was of such a character as constituted negligence on the part of the defendant. None of the matters assumed by the instruction were submitted to the jury. Other instructions are also erroneous because assuming a large part or the entire case of the plaintiff, and leaving to the jury only the question as to the plaintiff's knowledge of the supposed defect. (1 Sackett on Instructions, (3rd Ed.) page 148, sec. 163; 2 Thompson on Trials, page 1638; Ry. Co. v. Price, 97 F. 423; Wilson v. Fuller, 9 Kan. 121; Ranney v. Barlow, 112 U.S. 207; Henderson County v. Dixon, (Ky.) 63 S.W. 756; Ry. Co. v. White, (Tex.) 32 S.W. 322; Van Natta v. People's St. Ry. Co., (Mo.) 34 S.W. 505; So. Pine Co., v. Powell, (Fla.) 37 So. 570; Judd v. Gray, (Ind.) 59 N.E. 849; Sandy Lake v. Forker, (Pa.) 18 A. 609; Kennedy v. Rosier, (Ia.) 33 N.W. 226; R. Co. v. Dorsett, (Kan.) 50 P. 64; Ry. Co. v. Olesen, (Neb.) 59 N.W. 354; Loche v. Waldron, 77 N.Y.S. 405; Jones v. Ry. Co., (S. C.) 39 S.E. 758; China v. Sumter, (S. C.) 29 S.E. 206; Monsen v. Crane, (Minn.) 108 N.W. 933; Stringham v. Stewart, (N. Y.) 18 N.E. 870; Car Works v. Schaefer, (Md.) 53 A. 665; Sappenfield v. R. Co., (Cal.) 27 P. 590.) The errors pointed out in the instructions referred to were not attempted to be cured by any other instructions, nor could a correct charge have cured and destroyed the effect of the incorrect statement in these instructions. "A specific charge, based on particular facts, which, if followed by the jury, causes an erroneous verdict, is not cured by correct general charges applicable to cases of this class as well as the case at bar." (Ry. Co. v. Krouse, 30 O. St. 222.) "It is only when the fact so clearly appears as to be beyond doubt that an error challenged did not prejudice, and could not have prejudiced the complaining party, that the rule that error without prejudice is no ground for reversal is applicable. * * * And the vice of a wrong rule in a charge of the court is not extracted by the fact that the right rule was also given therein, because it is impossible to tell by which rule the jury was governed." (Armour & Co. v. Russell, 144 F. 614; Fogarty v. So. Pac. Co., (Cal.) 91 P. 650; Swiercz v. Ill. Steel Co., (Ill.) 83 N.E. 168.)

F. E. Anderson and H. V. S. Groesbeck, for defendant in error.

The case was tried upon the second amended petition to which no demurrer or motion was interposed, and therefore all objections to the original or to the first amended petition are eliminated. (Cone v. Ivinson, 4 Wyo. 203.) Contributory negligence is an affirmative defense to be pleaded with particularity, and the court properly sustained the motion to make the allegation of the answer in that respect more definite and certain. The acts and defaults constituting contributory negligence should be averred. (5 Ency. Pl. & Pr. 12; Thompson on Negligence, sec. 374; Nellis v. Traction Co., 3 C. C. (N. S.) 527; Durack v. Traction Co., Id. 531; Price v. Water Co., 58 Kan. 551; 3 Bates Pl. & Pr. 2287.) While the amended answer shows the extrinsic facts of alleged contributory negligence they were not substantiated by any evidence.

The petition clearly charges negligence on the part of the defendant, and the objections in that particular raised thereto for the first time in this court are wholly technical and insignificant. The evidence likewise establishes negligence. The rule of law in such cases as this is now settled by the case of Kreigh v. Westinghouse &c Co., 214 U.S. 249, 53 L.Ed. 988. The employee is not obliged to examine into the employer's methods of transacting his business, but may assume, in the absence of notice to the contrary, that reasonable care will be used in furnishing appliances necessary to the carrying on of the business. While the master is not responsible for injuries resulting from the place becoming unsafe through the negligence of the workmen, where he has discharged his primary duty of providing a reasonably safe appliance and place to work, and while he is not obliged to keep the place safe at every moment so far as such safety depends upon the due performance of the work by the servant and his fellow workmen, yet the duty of providing a reasonably safe place is a continuing one and is discharged only when a place of that character is furnished and maintained. ...