Syllabus by the Court
For the purpose of exceptions an order granting a new trial is regarded as a final order.
A summary of the evidence contained in the appellant's brief which is not controverted by the appellee may be adopted by the court as being a fair statement of the case.
A circuit judge should not grant a new trial on the ground merely that a verdict for the defendant was against the weight of the evidence where it cannot be said that there was no substantial evidence to support it.
The true question for the jury is not whether the master could have done something to prevent an injury to his servant, but whether he omitted any precaution which a prudent and careful man would or ought to have taken.
The question of negligence is primarily one for the jury under proper instructions, and becomes a matter of law for the court only where there is no conflict in the evidence and but one inference can reasonably be drawn from the facts.
A verdict cannot be said to be contrary to law because the jury supposedly overlooked certain instructions in a case where varying instructions were given to meet the facts as the jury might find them. It will be assumed that the jury found the facts to have been as contended for by the successful party.
ROBERTSON, C.J., WATSON AND QUARLES, JJ.
OPINION OF THE COURT BY ROBERTSON, C.J.
This case comes to this court on a bill of exceptions of the defendant allowed by the circuit judge as an interlocutory bill. Thirty-seven exceptions were incorporated in the bill, thirty-four of which were to instructions given to the jury, one to the denial of a motion for a nonsuit, one to the refusal to direct a verdict for the defendant, and one to the granting of plaintiff's motion for a new trial. The jury having returned a verdict for the defendant the last exception is the only one which demands the attention of this court, and as, under the practice in this jurisdiction an order granting a new trial is, for the purpose of an exception, a final order, the allowance by the circuit judge was not required.
The plaintiff, a laborer in the employ of the defendant, claimed damages against the defendant, a contractor, for personal injuries sustained by him in the course of his employment in the construction of a certain stone wall and by reason of the alleged negligence of the defendant in failing to provide him a safe place in which to work.
The time, place, circumstances of the occurrence and nature of the injuries sustained were alleged in the second paragraph of the plaintiff's complaint as follows:
“That on the 27th day of October, 1913, at Kapiki Gulch, District of Makawao, County of Maui, Territory of Hawaii, the defendant aforesaid was building and constructing a stone wall for the purpose of a retaining wall along the bank of Kapiki Gulch and on said date and prior thereto, plaintiff was employed and engaged in working for the defendant as a day laborer, the plaintiff's duties, being under his said employment, to deliver and assist in delivering to the stone masons and builders of said wall material for the purpose of constructing the same; and at the time of injuries to plaintiff hereinafter complained of, he was actually engaged in such services under his contract with the defendant, and as a part of his duties as such servant to the defendant. Said retaining wall had, on the date hereinabove named, been constructed to a height of about 30 feet and plaintiff was then and there on the top of said retaining wall performing his duties as such laborer in rolling and moving large stones to be placed in the wall for the purpose of further construction thereof. Plaintiff was acting in the line of his duties under his said contract and by order of the defendant and was at that time and place in the exercise of ordinary care and caution. When, without plaintiff's fault, said wall on which he was working collapsed and fell, thereby throwing plaintiff violently to the ground, a distance of about 30 feet and in falling, he was caught under some of the material of the wall, namely large pieces of stone and was thereby crushed, bruised, lacerated and wounded in such manner as that he was then and is now, as a result of said fall, permanently injured. Plaintiff's injuries so received consisted of cuts, bruises and laceration in and on various parts of his body, but his most severe and permanent injuries were to his left leg, both above and below his knee; plaintiff's leg being caught under the falling stone and debris, was torn, crushed and lacerated to such an extent that he was thereby permanently disabled. From said injuries, he has suffered great pain and mental anguish and from the same he still suffers in like manner. The flesh and muscles were torn from the bone of his leg and were otherwise injured to such an extent that plaintiff was compelled to be taken to a hospital for treatment, where he has remained constantly from that time up to this date and where he will be compelled to remain for an indefinite period for treatment of his injuries that he received as hereinabove indicated. Plaintiff has been compelled to spend large sums of money on hospital fees, doctor's bills, nursing and medical bills; has been deprived and is permanently deprived of his means of earning a living for himself and family by reason of the injuries hereinabove described. Plaintiff will not only be permanently injured; but his physical condition from the injuries received in said accident are such as that he will probably not be able to leave the hospital and will certainly never be able to engage in his former pursuits and labor, whereby he did earn and otherwise be able to earn a living for himself and family. Plaintiff was thereby and is totally disabled to do any kind of work or labor.”
The facts so set forth were substantially proved by uncontradicted evidence.
The alleged negligence of the defendant was set forth in the third paragraph of the plaintiff's complaint as follows:
“At the time of the injuries hereinabove complained of, plaintiff was in the exercise of ordinary care and caution. He was without fault in that he was performing his duties carefully and faithfully under the contract by and between himself and the defendant. The collapse and falling of said wall was due to the negligence and lack of care and skill on the part of the defendant in this that it was the duty of the defendant to provide a safe place for plaintiff to work and the defendant knew or could have known by the use of ordinary care, skill and observation, that the place provided plaintiff to work on said wall was unsafe and dangerous and this was not known to plaintiff nor could have been known to him by the use of ordinary care and observation. It was the duty of the defendant to have secured said wall from falling and collapsing by bracing the same with earth and other material as the same was being constructed, but this duty of the defendant was neglected by him, and by reason of the failure of defendant to perform this duty, the wall was made insecure and unsafe; and on account of this failure of the defendant to perform his duty to the laborers on said wall and particularly to plaintiff, the wall collapsed and fell and plaintiff was injured as hereinabove set out and described.”
The evidence in the case is thus summarized in the brief for the defendant, and as no defect therein has been pointed out by counsel for the plaintiff, it is adopted as a fair statement of the circumstances under which the injury occurred. The testimony for the plaintiff tended to show:
“That on October 27, 1913, the plaintiff was working at Kakipi Gulch, Maui; that at that time plaintiff was injured by the giving way of a wall upon which he was at work; at that time the defendant, A. A. Wilson, had a contract to build a road for the Loan Fund Commissioners, across Kakipi Gulch, Maui; the road was being constructed by building two dry rubble retaining walls for the purpose of holding a fill which would constitute the roadway. The plaintiff had been working upon the mauka of the two walls from some time in July until he was injured in October. He was a member of a gang of three or four who were building the wall. His job was to lay and place the stones in the wall, which job included helping to roll the stones or to bring stones to the wall. Martin, the plaintiff, was really making the wall. At the time plaintiff was injured the height of the mauka wall is placed by guesses of plaintiff's witnesses at 18 or 19 feet to 25 or 30 feet at the place where the wall gave way. The break occurred 40-45 feet from the bridge end of the wall. The cross-section of the wall at such a point as shown by the specifications would fix the height of the wall at 12-13 feet at the time of the accident. A narrow gauge car track was laid along the top of the incomplete wall at this time which would fix the width of the top of the wall at this point at 5 to 7 feet. The plaintiff started work at the gulch before Christmas, 1912. He had worked on road building before. He alleges that he was laid off for about two months. This was probably during May and June. When he returned to the job he went right to work building wall. He recognized the risk of building this wall. In building the wall the laborers had hammers with which to chip off uneven corners, fit them into place and test their hardness. The work was of such a nature that a man of ordinary sense or judgment could perform it. When work was first begun on wall, rocks were brought from top of gulch. The wall in question was built with a batter or slope on the outside and vertical on the...
