Cudahy Packing Co. v. Anthes

• Decision Date: 28 July 1902
• Docket Number: 1,693.
• Citation: 117 F. 118
• Parties: CUDAHY PACKING CO. v. ANTHES.
• Court: U.S. Court of Appeals — Eighth Circuit

117 F. 118

CUDAHY PACKING CO. v. ANTHES.

No. 1,693.

United States Court of Appeals, Eighth Circuit.

July 28, 1902

Edson Rich and Charles E. Clapp, for plaintiff in error.

H. C Brome (D. L. Johnson and A. H. Burnett, on the brief) for defendant in error.

The plaintiff in error (defendant below) is a corporation engaged in slaughtering cattle, sheep, and swine, and in curing packing and selling the products. The defendant in error (plaintiff below) was one of its employes, and on November 8 1900, was engaged in removing hams from the fourth story to the pickling department in the third story of a packing house of defendant in Omaha. He loaded the hams on a truck in the fourth story, which he wheeled to an elevator, in which he with his loaded truck, was lowered to the third story, where the hams were moved on the truck to the place where they were to be left. On one of these trips on that day the elevator was lowered faster than usual, and stopped more suddenly than usual when it reached the floor of the third story, when from the jar or jerk of the stop the rope which sustained the elevator cage, and by which it was raised and lowered, parted, and the case with the plaintiff and the loaded truck fell to the bottom of the elevator shaft, and the plaintiff sustained severe injuries. A new manila rope, 2 inches in diameter and 240 feet long, had been put on this elevator July 1, 1900. About 112 feet of this rope was exposed to the weather, and this part, which also went around the drum, became worn and weakened, so that about the middle of September, 1900, it was cut off, and the part running to the elevator spliced to new rope, extending to the drum. This rope, although inspected nearly every day, and deemed by the inspector sufficient up to the time of the accident, had become weakened and somewhat worn and frayed, and it parted at the time of the accident by the pulling apart of the said splice. The petition alleged negligence of the defendant in failing to provide a safe rope and safe appliances for the security of said elevator. These allegations were in the amended answer met by a general denial, and allegations that plaintiff's injuries were caused by his own contributory negligence and the negligence of a fellow servant. Upon the trial the jury rendered their verdict in favor of the plaintiff for the sum of $6,500, and on the same day, May 29, 1901, judgment was entered in favor of the plaintiff and against the defendant for $6,500 and costs.

Before SANBORN and THAYER, Circuit Judges, and LOCHREN, District Judge.

LOCHREN District Judge, after stating the case as above, .

The assignments of error are directed to the parts of the instructions to the jury which were excepted to. The first assignment challenges the portion of the charge:

'The law imposed the duty upon the defendant, Cudahy Packing Company, to use ordinary care to provide a reasonably safe rope with which to operate this elevator, and it devolved upon the defendant to use ordinary care to provide the plaintiff with a reasonably safe appliance with which he could perform his work, and also a reasonably safe place for him to perform his services. That was the duty of the defendant, and if you are satisfied by a preponderance of the evidence in this case that the defendant violated its duty towards the plaintiff in the particulars mentioned, then the plaintiff would be entitled to recover whatever damages are naturally and legitimately followed from the injuries resulted from such negligence.'

This portion of the charge is criticised, because it did not, in case the jury should find that the defendant was negligent, upon the evidence, and the law so clearly stated, require the jury to find further whether or not such negligence of the defendant was the proximate cause of the injury sustained by plaintiff.

It is improper to confuse a jury by submitting to them, as a matter which they are to pass upon and determine, an issue which though made by the pleadings, has been entirely eliminated from the case by the whole evidence when the case goes to the jury. It was clear by and unquestioned at the close of the testimony that at the time of the accident the rope furnished by de...