Cavoretto v. Alaska Gastineau Min Co.

• Decision Date: 08 October 1917
• Docket Number: 2965.
• Citation: 245 F. 853
• Parties: CAVORETTO v. ALASKA GASTINEAU MINING CO.
• Court: U.S. Court of Appeals — Ninth Circuit

245 F. 853

CAVORETTO v. ALASKA GASTINEAU MINING CO.

No. 2965.

United States Court of Appeals, Ninth Circuit.

October 8, 1917

J. H Cobb, of Juneau, Alaska, and Heywood & Wilson and Walter Shelton, all of San Francisco, Cal., for plaintiff in error.

L. P Shackleford, H. L. Faulkner, and W. S. Bayless, all of Juneau, Alaska (Rufus Thayer, of San Francisco, Cal., of counsel), for defendant in error.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

HUNT Circuit Judge (after stating the facts as above).

In charging the jury the court said:

'If you find that the hammer was a defective appliance, then the next question would be: Was the defendant required to use that particular hammer while in that particular condition in the performance of the work, or was he free to repair or reshape it, or get some other hammer that was suitable, and not dangerous? For, if he was so free, then defendant cannot be said to have required the work to be done with that hammer in that shape. If you find from the evidence that this particular hammer was furnished plaintiff to do the work with, and that it was defective then you are to inquire further whether the defect in the hammer was due to the negligence of the defendant--that is to say, whether or not it knew, or by the exercise of reasonable care could have known, that the hammer was defective. If it was defective, and the defendant knew, or ought to have known, of that fact, and required the plaintiff to use it in the performance of his duties-- that is, left him no free and voluntary choice but to use it in that shape-- and if the injury, if any, was received by virtue of so using the implement so found to be defective and required to be used, then your verdict should be in favor of the plaintiff for such damages as you may find that he has suffered. But if you find that the implement was not defective under the circumstances, as I have defined 'defective' to you, or if you find that the plaintiff was not required to use it in the work, but might have taken a hammer which was not defective, and yet freely and voluntarily chose the defective hammer, knowing it to be defective, then he cannot recover, and your verdict must be for defendant.'

Counsel excepted to this instruction, and contend that it was not warranted by the pleadings or the evidence in the case. Their argument is that it injects into the case an issue whether or not plaintiff was required to use...