Giles v. Diamond State Iron Company

• Decision Date: 19 February 1887
• Citation: 8 A. 368,12 Del. 453
• Court: Delaware Superior Court
• Parties: FERRIS GILES v. THE DIAMOND STATE IRON COMPANY

8 A. 368

12 Del. 453

FERRIS GILES v. THE DIAMOND STATE IRON COMPANY

Superior Court of Delaware, New Castle

February 19, 1887

ACTION ON THE CASE for personal injuries received by plaintiff while in the employ of defendant.

Verdict for the plaintiff.

Levi C Bird for plaintiff cited: notices citation on other side from 2 Thomp. on Negl., 994; 4 Ore., 52, 56. Secondly, that the defendant and plaintiff had equal knowledge or means of knowledge of the defects or deficiencies in the wall. This was not the case, nor had they the same means of knowledge. What is a patent, and what is a latent defect? It was an unlawful building, contrary to the city ordinance which required such a wall to be seventeen inches thick. [Reads the ordinance.] N. E. Rep., vol. 5, 187; 116 N. S., 652; N. E Rep., vol. 2, 24; 99 N. Y. Co. Appeals., 368; 26 Am. & Eng R. R. Cases., 325; At. Reps., vol. 3, 38; N. E. Rep., vol, 7 877; At. Rep., vol. 6, 437; N. E. Rep., vol., 5, 449; Wood's Law of Master and Servant, Sec. 384-5-8; Whart. on Neg., Sec. 217; 76 Pa. 389; 49 N.Y. 521; 106 Mass. 282; 2 Thomp. on Neg., 972, 974, 975; 24 N.Y. 410; N. E. R., vol. 9, 302.

George Gray, on the same side: Whart. on Neg., 232; 30 Md. 204; 2 Ell. & Black, 76; 4 Wall., 678; 6 Hurls. & Norm., 488; 4 Hun., 318; 3 Hurls. & Fult., 596; L. R., 5th Queen's Bench, 411; 57 N.Y. 567; Smith on Neg., 419. These authorities all go to the negligence of the defendant in the action. Whart on Neg., Secs., 205, 214; 100 U.S. 214, 216, 218, 222; 7 Hurlst. Norm., 937; Whart on Neg., Sec. 210, note; 45 Ill. 197; 52 Ib., 183; 44 Md. 283; 46 Mo. 163; 2 Hurls. & Norm., 213; Whether the plaintiff was guilty of contributory negligence is a question for the jury, 49 N.Y. 521; Woods, &c., Sec. 388.

Edward G. Bradford for defendant cited: The law of master and servant and the law of negligence, either may be involved: 1. Thinness of the wall. 2. One end was left open below the square. The defects or deficiencies in the wall complained of were not latent, but patent to every workman on the roof, having knowledge of them the plaintiff accepted the employment subject to and assumed the risk of it. 1 Houst., 469; Flinn's Case, 3 Houst., 176; 4 Houst., 103; 4 Houst., 626; 4 Houst., 583; 3 W. & W., 1; 5 E. L. & Eq. Rep., 265; 9 Ex. Rep., 223; 40 E. L. & Eq. Reps., 491; 2 H. & N., 768; 3 H. & N., 648; 11 Exch., 832; 102 E. C. L. Rep., 385; 12 Q. Bench Div., 493; 77 Ill. 256; 110 Ill. 340; 5 Bissell, 315; 2 Thompson on Neg., 994; Wood on Master and Servant, Secs. 335, 382; 4 Waite on Actions and Defences, 418; 29 Conn. 548, 560; 25 N.Y. 562, 566; 63 N.Y. 449; 11 N.W. 559; 4 Ore., 52, 56; 40 Iowa 341; 27 Min., 137, 140; 31 Cal. 376; 46 Cal. 409; 13 Barb., 9; on non-suit.

George H. Bates, for defendant: Beach on Contr. Neg., Sec. 123; Whart. on Neg., Sec. 237, 243, 214, n. 1; 1 Thomp. on Neg., 368, 376; Whart. on Neg., Sec. 420, 421; 3 W. Rep., 393; 5 N. E. Rep., 187; Woods, &c., 382.

Charles B. Lore, on same side:

Prayers for Instructions on behalf of the defendant.

1. That upon the evidence the jury must find a verdict for the defendant,--

or, if the first instruction be refused, then as follows:

2. That if the jury from the evidence believe that the defendant in and about the planning and erection of the building in question exercised the same care that should have been used by an ordinarily prudent man with respect to the planning and erection of such a building, then the plaintiff cannot recover.

3. That if the jury, from the evidence, believe that the building in question was defective by reason of the thinness of the brick wall and the fact that the southerly end of the building was left open below the square, or in either of these respects, such defects were patent, and the plaintiff being bound to know them, assumed whatever risk was connected therewith, and cannot recover.

4. That upon the evidence the plaintiff was bound to know the thickness of the brick wall of the building in question and the fact that the southerly end of the building was left open below the square, and that if the jury, from the evidence, believe that the defendant had not, during the planning or erection of the building, any notice or idea that the building was or would be dangerous, the plaintiff must be considered as having assumed whatever risk was connected with the thinness of the wall or the fact that the end of the building was left open, and cannot recover.

5. That if the jury, from the evidence, believe that the plaintiff had equal knowledge or means of knowledge with the defendant as to the risk or danger of the falling of the building in question, the plaintiff cannot recover.

6. That when the plaintiff went to work upon the defendant's premises in the capacity of a carpenter, the defendant had the right to rely upon the plaintiff's competency to perform the duties of his employment and upon his ability to apprehend and avoid all dangers that he might have discovered by the exercise of ordinary care and prudence.

7. That the defendant was not bound in and about the planning and erection of the building in question to provide against storms of unusual violence, but was only bound to exercise that degree of care due from ordinarily careful and prudent men in and about the planning and erection of such a building.

8. That if the jury from the evidence believe that the building in question would not have fallen at the time it did fall, but for wind pressure upon the building, and shall further believe that the building would have fallen under that wind pressure even if the brick wall between the piers had been thirteen (13) inches in thickness, plumb and properly constructed, then the plaintiff cannot recover.

9. That if the jury from the evidence believe that the building in question was improperly planned or constructed and fell by reason of pressure, but that even if properly planned and constructed it would have fallen by reason of that wind pressure, then the plaintiff cannot recover.

10. That in this action the burden of proof is upon the plaintiff to establish negligence on the part of the defendant.

11. That in this action the burden of proof is upon the plaintiff to show due care on his own part.

Gentlemen of the Jury.

OPINION

COMEGYS, C. J. charging, the jury:

Gentlemen of the Jury:

You need not be told by me that this is a very important case. Great interest has been manifested by the public in respect to it; it has excited a great deal of attention in the community, and the attendance of the members of the bar here to watch it tends to show the deep interest they take in it also. It is very fortunate that it is committed to a jury so intelligent and well known in the community and so worthy in every way as I know you are.

This is a case, the features of which are peculiar, but after all there is nothing very strange about the law which is applicable to it. The law of negligence has come under review in this Court on several occasions and the Court has uniformly laid it down to the jury as I shall lay it down to you to-day, except so far as I shall be obliged to deviate somewhat on account of the peculiar characteristics of this case and I need not say to you that it is a case in which the jury must be governed by the law and facts in making up their verdict. The law is part of the testimony in the case: it comes from the mouths of the judges, who are sworn to do their duty, and their duty is to deliver the law as they believe the law to be; and therefore there is the same sanction precisely with respect to the deliverance by the Court that there is to that of a witness at the bar of the Court. While your judgments may not approve the law, you are still bound by it; otherwise, there would be no certainty in judicial trials. And you are to be governed by what is said by the witnesses, but you are not bound to believe all that the witnesses say, and you may choose between them which you think are most worthy of credit; but in a case of this kind you are bound to give your verdict to that side upon which in your judgment, there is the greatest weight of testimony. It is not the number of witnesses that prove a fact so that the jury should always be governed by it. Of course, they exercise an influence; but it is the quality of the testimony--the matter of knowing what they speak of, their manner and demeanor on the stand, and the probability of their testimony being true; and you must give your verdict to that side upon which the greatest weight of testimony is--wherever the preponderance of evidence is, there should your verdict be. In other words, you are to render a just and true verdict according to the evidence in the case; and I am perfectly sure that none of you will be influenced by any consideration of the fact that the defendant in this case is a corporate body and that the plaintiff in this case is a young man without means. You must try it between them as individuals and not allow any feeling of prejudice to exist. I know you will not be influenced by the fact that the defendant is a corporation. It is entitled to the same degree of consideration in this Court as an individual man, and having no greater privileges or rights. If a corporate body has done wrong, it must be held liable for it. If this young man has just grounds of action, you must give him what, in your judgment, is just compensation. But I will say to you now that this is not a case for what is called vindictive damages; that is, damages to punish the defendant. There are cases where the jury ought to give a verdict to punish the defendant, where the defendant has been guilty of wilful and gross negligence--paying no sort of regard to the interest of others--because that is something very different...