Chicago Great Western Ry. Co. v. McDonough

• Decision Date: 27 April 1908
• Docket Number: 2,405.
• Parties: CHICAGO GREAT WESTERN RY. CO. v. McDONOUGH.
• Court: U.S. Court of Appeals — Eighth Circuit

161 F. 657

CHICAGO GREAT WESTERN RY. CO. v. McDONOUGH.

No. 2,405.

United States Court of Appeals, Eighth Circuit.

April 27, 1908

Syllabus by the Court

The practice of filing interminable assignments of error tends to defeat the purpose of the rule requiring such assignments and is not to be approved.

In examining the charge, for the purpose of ascertaining its correctness in point of law, the whole scope and bearing of it must be taken together. It is wholly inadmissible to take up single or detached passages, and to decide upon them without attending to the context, or without incorporating such qualifications and explanations as naturally flow from the language of other parts.

A general exception to a considerable portion of the charge cannot be regarded as presenting a specific objection to a lesser portion, which in fairness to the trial court should have been specially called to its attention, in order that the appropriate correction might be made.

The rule that affirmative testimony is to be preferred to negative is not absolute, and whether or not in any particular case it shall be called to the attention of the jury is so largely in the discretion of the trial judge that the refusal to do so is not ordinarily reversible error.

In determining whether a servant assumed the risk of injury incident to the use of a boiler negligently permitted by the master to become unfit and unsafe for use, the true test is not whether the servant exercised care to discover dangers but whether they were known to him, or were so patent as to be readily observable by him.

Whether or not a witness tendered as an expert possesses the requisite qualifications rests largely in the discretion of the trial court, and its decision thereon ought not to be disturbed unless it can be said that it was clearly erroneous.

Hypothetical questions propounded to an expert witness are not objectionable merely because the evidence tending to establish the facts assumed therein is contradicted.

The controlling standard or test of reasonable or ordinary care is what a reasonably prudent person would ordinarily have done in the like circumstances, rather than the prevailing practice of others engaged in the same business. The practice of others, even though not a general or prevailing one is some evidence of what could have been done, and so has a material bearing upon whether the requisite care was exercised in what was actually done; and an instruction which treats what a reasonably prudent person would ordinarily have done in the like circumstances as the controlling standard or test of reasonable or ordinary care, and also treats the prevailing practice of others engaged in the same business as evidence only of that standard, and directs that such practice be considered with all the other evidence bearing upon the subject in fixing upon that standard, is not objectionable as permitting the jury to find that the conduct in question was negligent, even though it conformed to the prevailing practice of others, because that practice was not in itself the legal standard, but, as indicated in the instruction, was evidence only thereof.

In an action for injuries sustained through a boiler explosion, where the gravamen of the charge was that the defendant had negligently failed to exercise reasonable care in maintaining the boiler in a reasonably safe condition, evidence of recurring explosions, not otherwise explained, occurring in the course of its prior use, when the conditions were substantially the same, was admissible as bearing upon its tendency to become impaired by the particular use to which it was subjected, the defendant's knowledge of that tendency, and the precautions which, in the exercise of reasonable or ordinary care, should have been taken thereafter in inspecting and testing it to determine whether it was in reasonably safe condition for use; but such evidence was not admissible for any other purpose.

Evidence of the condition, shortly after an accident, of the instrumentality which caused it, is admissible as bearing upon its condition at the time of the accident, or just prior thereto, when it appears that there has been no intervening change.

Upon a motion to strike out all evidence relating to a specified subject, some of which is unobjectionable, the court, while at liberty to select or separate what is objectionable from what is unobjectionable, and to strike out the former, is not obliged to do so, but may respond to the motion in the terms in which it is made.

Thomas D. Healy (A. G. Briggs, John L. Erdall, M. F. Healy, and Robert Healy, on the brief), for plaintiff in error.

Sylvester Flynn and Robert M. Wright (J. W. Henneberry, on the brief), for defendant in error.

Before VAN DEVANTER and ADAMS, Circuit Judges, and RINER, District judge.

VAN DEVANTER, Circuit Judge.

This case arose out of the explosion of a stationary boiler in the car shops of the Chicago Great Western Railway Company at Oelwein, Iowa, whereby severe and permanent personal injuries were inflicted upon John A. McDonough, the fireman who was attending the boiler at the time. In the Circuit Court he obtained a verdict and judgment against the railway company, and it now insists that error prejudicial to it was committed in the progress of the trial.

There was nothing very unusual about the case as it was presented in the Circuit Court, as respects either the volume of evidence produced or the number of questions of law arising for decision, and yet more than 60 assignments of error are made and seemingly relied upon. All of these have been attentively considered, but we feel constrained to repeat the admonition given in Michigan Home Colony Co. v. Tabor, 72 C.C.A. 480, 141 F. 332, that:

'The practice of filing such a large number of assignments cannot be approved. It thwarts the purpose sought to be subserved by the rule requiring any assignments. It points to nothing. It leaves opposing counsel and the court as much in the dark concerning what is relied on as if no assignments were filed.'

And we also repeat the observation made in Shepard v. United States, 85 C.C.A. . . . , 160 F. 584, 592, that, generally speaking:

'Such interminable assignments, instead of impressing the court with the thought of an imperfect trial, rather cast discredit upon the worth of any of them.'

Of the issues presented by the pleadings it is enough to say that the petition charged that the defendant failed to exercise reasonable care in inspecting the boiler and in otherwise maintaining it in a reasonably safe condition for use, that its water tubes or flues were thereby permitted to become and to remain worn, burned, blistered, and weakened to a degree which made the boiler unfit and unsafe for use, and that by reason thereof the explosion occurred and the plaintiff was injured, and also to say that the answer denied the negligence charged against the defendant, and alleged that the plaintiff contributed to his injuries by his own negligence, and that they resulted from an assumed risk. The plea of contributory negligence was withdrawn from the jury, with the assent of the defendant, because not sustained by any evidence; so it need not be further noticed.

At the close of the evidence the court declined to direct a verdict for the defendant, and error is assigned thereon; but as a careful reading of the evidence set forth in the bill of exceptions satisfies us that the jury reasonably could have found therefrom that the defendant was negligent substantially as charged, that the plaintiff did not assume the extraordinary risks arising out of such negligence (see Chicago, Milwaukee & St. Paul Railway Co. v. Donovan, 85 C.C.A. . . . , 160 F. 826), and that it was the proximate cause of his injuries, we think the ruling was right.

Several assignments call in question the refusal to give various instructions, and the giving of others, defining the issues presented by the pleadings, the elements of a right of recovery on the part of the plaintiff, the measure of care which the defendant was required to exercise for the plaintiff's protection, the burden of proof, the probative force of the accident itself, and what might rightly be considered in determining the weight to be given to the testimony of the several witnesses.

None of these assignments is well grounded; nor is it necessary to take them up in detail here. All that was material and otherwise unobjectionable in the instructions refused was substantially and fairly incorporated in the charge given. It was in the main exceptionally pertinent, plain, full, and accurate. But some portions of it, if separated from the rest, would justly be regarded as objectionable. That, however, is not a fair test of their meaning, for, as was said in Magniac v. Thompson, 7 Pet. 348, 390, 8 L.Ed. 709, and Spring Co. v. Edgar, 99 U.S. 645, 659, 25 L.Ed. 487:

'In examining the charge, for the purpose of ascertaining its correctness in point of law, the whole scope and bearing of it must be taken together. It is wholly inadmissible to take up single and detached passages, and to decide upon them without attending to the context, or without incorporating such qualifications and explanations as naturally flow from the language of other parts of the charge. In short, we are to construe the whole as it must have been understood, both by the court and the jury, at the time when it was delivered.'

A reading of the entire charge makes it plain that the faults in the portions covered by these assignments were inadvertent, rather than intentional, and were so fully corrected by the effect of the charge as a whole that the jury could not have been misled or confused by them. They therefore, afford no ground...