McIntosh v. The Standard Oil Company

• Decision Date: 12 April 1913
• Docket Number: 18,040
• Citation: 89 Kan. 289,131 P. 151
• Parties: MANUEL S. MCINTOSH, Appellee, v. THE STANDARD OIL COMPANY, Appellant
• Court: Kansas Supreme Court

131 P. 151

89 Kan. 289

MANUEL S. MCINTOSH, Appellee, v. THE STANDARD OIL COMPANY, Appellant

No. 18,040

Supreme Court of Kansas

April 12, 1913

Decided January, 1913.

Appeal from Wyandotte district court, division No. 1.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONTRIBUTORY NEGLIGENCE--Evidence of Intoxication Competent. Upon the issue whether at a particular time a person was exercising due care for his own safety, evidence that he was intoxicated is ordinarily admissible, not as constituting or conclusively establishing negligence on his part, but as being a circumstance to be considered in determining the matter.

2. WITNESS--Refusal to Permit Proper Cross-examination--Motion for New Trial. The refusal of the trial court to allow the defendant to cross-examine the plaintiff upon an important matter can be urged as a ground for a new trial without a showing as to what answers the plaintiff would have returned if the rejected inquiries had been permitted. The provision of the code (§ 307) that when the ground of a motion for a new trial is error in the exclusion of evidence such evidence shall be produced at the hearing does not apply to that situation.

3. PLEADINGS--Negligence--Issue of Safe Place to Work Fairly Presented. The issue of negligence in an employer in failing to exercise due care to provide for his employee a safe place in which to work may be presented by allegations of specific acts or omissions, without in so many words referring to the safety of the working place.

Frank Hagerman, of Kansas City, Mo., A. L. Berger, and E. R. Adams both of Kansas City, for the appellant.

T. P. Anderson, and E. K. Robinett, both of Kansas City, for the appellee.

Mason J. Johnston, C. J. dissenting.

OPINION

MASON, J.:

Manuel S. McIntosh, a teamster in the employ of the Standard Oil Company, was engaged in hauling oil with a wagon drawn by three mules. While he was filling the tank on his wagon from a standpipe in the storage yard, the team ran away. McIntosh was injured. He sued the company, alleging that the runaway was caused by an empty barrel being negligently loosened from a rick and permitted to roll toward and close to the mules. He recovered a judgment from which the defendant appeals.

The answer alleged in general terms that the plaintiff's own carelessness contributed to his injuries, without specifying the acts or omissions relied upon as constituting such contributory negligence. No motion was made to make the allegations in this regard more definite. The defendant offered evidence for the purpose of proving that at the time of the injury the plaintiff was intoxicated. The offer was refused, and complaint is made of that ruling. Upon the issue whether at a particular time a person was exercising due care for his own safety, evidence that he was under the influence of liquor is clearly admissible, not as conclusively establishing that he was negligent, but as having an obvious bearing upon the matter. (29 Cyc. 534; Note, 19 A. & E. Ann. Cas. 1176.) The plaintiff contends, however, that if the exclusion of this evidence was error it was not prejudicial, because intoxication on his part could not constitute negligence in itself, and there was no evidence that if he was intoxicated his condition in that respect in any way contributed to his injury. In support of this view it is argued that the plaintiff did everything that could have been required of a reasonably prudent man, and therefore his condition as to drunkenness or sobriety was immaterial. This amounts to asserting that there was no evidence whatever that the plaintiff was guilty of contributory negligence in any respect. We think, under all the evidence, it was a fair question for the jury whether the plaintiff's own conduct was such as to preclude a recovery, and the trial court was evidently of that opinion, for the question was submitted for their determination. If it were conceded or conclusively established that the plaintiff did everything for his own protection that a sober man could have done, then doubtless evidence of his drunkenness would not be material. But it was for the jury to decide precisely what took place, and the plaintiff's condition as to sobriety might have a bearing in determining this. And whether, if he was drunk, that fact lessened his effectiveness in preventing or escaping danger was likewise a matter to be passed on by them.

The statute requires that where the ground of a motion for a new trial is error in the exclusion of evidence, such evidence shall be produced at the hearing of the motion. (Civ. Code § 307.) The abstract does not show that at the hearing of the motion for a new trial in this case any evidence was produced that the plaintiff was in fact intoxicated when he received his injury. This omission prevents a...