Armour & Co. v. Harcrow

• Decision Date: 12 October 1914
• Docket Number: 4068.
• Parties: ARMOUR & CO. v. HARCROW.
• Court: U.S. Court of Appeals — Eighth Circuit

217 F. 224

ARMOUR & CO. v. HARCROW.

No. 4068.

United States Court of Appeals, Eighth Circuit.

October 12, 1914

Syllabus by the Court.

When the evidence leaves the averment that an injury was caused by an act of negligence to speculation, without substantial evidence to sustain it, it is the duty of the court to instruct the jury to return a verdict for the defendant.

An injury which is the natural and probable cause of an act of negligence is actionable, and such an act is the proximate cause of the injury.

The doctrine of res ipsa loquitur is inapplicable to cases between master and servant brought to recover damages for negligence, and the burden is on the plaintiff to allege and prove that the act of negligence of which he complains was the proximate cause of the injury.

The plaintiff, a carpenter, was employed boring holes and inserting lag screws into joists, which rested on iron corbels on posts, through holes in the arms of the corbels about six inches from the posts. He stood on a ladder, with his face upturned, within about two feet of the corbel boring a hole or inserting a lag screw, when a piece of rust or rusty iron fell from the corbel into one of his eyes and blinded it. The work in process was the repair of a beef extract room, by taking out old joists and putting in new ones. He knew that the corbels were rusty, and that dust and pieces of rust fell when the old joists were taken out. The room was so dark that he could not see the holes in the corbels, but he found them by feeling for them and inserting his fingers in them, and successfully bored six or eight holes, and inserted lag screws, when, after working from 10 a.m. until 5 p.m., the accident happened. At 11 in the forenoon and at 1 in the afternoon he had asked his foreman for more light, and had told him it was dangerous to work without it, and the foreman had promised to furnish light but did not.

Held here was no substantial evidence that the lack of light was the proximate cause of the accident, that the evidence left the issue whether or not the injury was caused by the lack of light to the mere speculation of the jury, and the court should have given a peremptory instruction for the defendant.

William G. Holt, of Kansas City, Kan. (C. Angevine and J. K. Cubbison, both of Kansas City, Kan., on the brief), for plaintiff in error.

L. C. True and E. C. Little, both of Kansas City, Kan., for defendant in error.

Before SANBORN and CARLAND, Circuit Judges, and REED, District Judge.

SANBORN Circuit Judge.

Armour & Co., a corporation, complain that the court below erroneously refused to direct a verdict in its favor at the close of the evidence and permitted a judgment against it on the verdict of the jury in this case for $2,750.

Counsel for the defendant in error, the plaintiff below, ask in their brief in reply to that of the defendant below that the writ of error be dismissed, because in the printed record the case is entitled on the first page thereof and at the top of each printed page thereafter Armour Packing Co. v. William Harcrow, the bill of exceptions bears no title, but recites that at the opening of the trial Messrs. Angevine, Cubbison, and Holt appeared for Armour Packing Company, and the clerk certified that the copies of the bill of exceptions and other proceedings in the transcript were copies from the record of the proceedings in 'Case No. 9030, C.C., entitled William Harcrow v. The Armour Packing Company. ' They argue that these facts show that the record brought here is of the proceedings in a case against Armour Packing Company, while the writ of error challenges the trial in a case against Armour & Co. An examination of the printed transcript, however, discloses the facts that the complaint and amended answer, the petition for removal from the state court, the order of removal, the journal entry of the trial, which recites the names of the witnesses whose testimony is recorded in the bill of exceptions, the verdict and judgment, and the petition for the writ of error were entitled 'William Harcrow v. Armour & Co.,' that the bill of exceptions has no title in the printed record because a rule of this court requires the omission of its printing, and it is presumed to have the same title as the pleadings, that Messrs. Angevine, Cubbison, and Holt, who are recited in the bill of exceptions as appearing for Armour Packing Company, signed the answer as attorneys for Armour & Co., removed the case from the state court for that company, procured the writ of error for that company and have acted for it throughout the proceedings, and that 'Case No. 9030 C.C.,' which the clerk of the court recites in his certificate is entitled 'William Harcrow v. The Armour Packing Company,' appears by the printed record to be the case of William Harcrow v. Armour & Co. by the number on the amended answer, on the journal entry of the trial, and on the journal entry of the verdict and judgment. There is, therefore, no doubt that the word 'Packing' where it appears in the title in the printed record was inserted by a clerical error, the motion to dismiss the appeal is frivolous, and it is dismissed.

The action was for negligence. The only alleged negligence of the defendant submitted to the jury was a failure to provide sufficient light for the plaintiff to work by. The accident was the falling of something which the plaintiff did not see but testified was rust or rusty iron, from an iron corbel, through a hole in which he was boring a hole or inserting a lag screw into a joist above it with his face upturned beneath it. The court charged the jury that, unless the plaintiff had proved that the accident and the injury to the plaintiff were directly caused by the defendant's failure to provide him sufficient light, he could not recover, and the defendant insists that it was the duty of the court to instruct the jury in its favor, because there was no substantial evidence that the lack of more light was the direct cause of the injury. The great preponderance of the evidence was that the room in which the plaintiff was working was sufficiently lighted,...