O'Brien v. Las Vegas & T.R. Co.

• Decision Date: 28 May 1917
• Citation: 242 F. 850
• Parties: O'BRIEN v. LAS VEGAS & T.R. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

242 F. 850

O'BRIEN v. LAS VEGAS & T.R. CO.

United States Court of Appeals, Ninth Circuit.

May 28, 1917

A Grant Miller, of Reno, Nev., for plaintiff in error.

C. O Whittemore, of Los Angeles, Cal., for defendant in error.

Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District judge.

GILBERT Circuit Judge.

The plaintiff in error was the plaintiff in the court below in an action to recover damages for personal injuries sustained while he was in the employment of the defendant as a carpenter on the defendant's railroad. The jury found for the defendant. The plaintiff testified that he was proceeding on a gasoline motor section car to his place of work; that the motor car was defective, in that the drain cock of the gasoline tank was defective, worn, and out of repair, so that it permitted gasoline from the tank to escape and fall upon the heated portions of the machinery of the car, whereby the gasoline ignited; and that the plaintiff, while endeavoring to close the drain cock and to stop the car, was thrown off the car and injured.

The Workmen's Compensation Act of Nevada of March 15, 1913 places upon an employer who declines to come within its provisions, as is the case with this defendant, the burden of proof to rebut the presumption of negligence created by the statute in cases of personal injury to an employe in the course of his employment. We find no error in the instruction of the court that, in determining whether the presumption of negligence has been overcome, the jury may properly take into consideration all of the evidence, both that of the plaintiff and that of the defendant.

Nor do we find error in the admission in evidence of the written statements signed by the plaintiff soon after the accident. It is sufficient to say of them that they contain nothing materially different from the plaintiff's testimony on the trial of the case.

The drain cock was not visible from the position in which the plaintiff sat while driving the car. After the gasoline had ignited, he leaned over and observed the gasoline escaping from the drain cock in a stream which he testified was about one-third of its capacity to discharge. He had then proceeded about a mile and a half on his way. The circumstances strongly suggest that by the jar of the machinery the drain cock had worked loose, and that it was defective. The plaintiff offered to prove by the witness Holland, who was directed to use the car some eight or ten days after the accident, the condition in which he found the drain cock, and offered to prove by him that the drain cock was defective at that time, and that the escaping gasoline ignited as before. Counsel for plaintiff admitted that it could not be shown by the witness that the car had not been handled or used during the interval. The court excluded the evidence, stating that:

'A great many things can happen to a stopcock in ten days, and it don't seem to me the company should be held responsible for that unless it was shown it was in that condition at the time of the accident.'

We think that the testimony should have been admitted, as tending to show the defective condition of the stopcock at the time of the accident, under the general rule that the condition of an appliance in the use of which the plaintiff was injured may be shown within a reasonable time after the accident, as tending to show its condition at the time of the injury, in the absence of evidence of a change in the meantime. 29 Cyc. 614. It is true that it has been held in some cases, where a considerable time has elapsed after the accident, that the plaintiff must accompany the evidence of the subsequent condition of the machine or appliance with proof that the condition has not changed in the meantime. But obviously there can be no hard and fast rule to that effect. The question of the admissibility of the evidence in such a case must be governed largely by the circumstances, the nature of the appliance, the material of which it is constructed, and the use to which it is devoted. A drain cock, composed of metal designed to be used continuously as a permanent fixture on a motor car, should not be expected to develop suddenly a defect from wear. If, in this case, it were the fact that eight or ten days after the accident the drain cock worked loose and the gasoline ignited in precisely the same way in which they did when the plaintiff was injured, that fact was strongly corroborative of the plaintiff's evidence that the drain cock was defective at the time of the accident, and we think that he should not be deprived of the benefit of such evidence merely because he, not having had the possession of the machine or access thereto in the meantime, is in no position to prove there has...