Sioux City & P. R. Co. v. Finlayson

• Decision Date: 14 October 1884
• Citation: 20 N.W. 860,16 Neb. 578
• Parties: SIOUX CITY & P. R. CO. v. FINLAYSON.
• Court: Nebraska Supreme Court

16 Neb. 578

20 N.W. 860

SIOUX CITY & P. R. CO.

v.FINLAYSON.

Supreme Court of Nebraska.

Filed October 14, 1884.

Error from Washington county.L. W. Osborn and Joy, Wright & Hudson, for plaintiff.

George W. Doane and Ballard & Walton, for defendant.

REESE, J.

This is an action against the plaintiff in error, the Sioux City & Pacific Railroad Company, for damages resulting from a personal injury caused by the explosion of an engine of said company, and on which defendant in error was at the time engaged and employed as an engineer. The petition alleges that the engine became and remained defective and dangerous through the negligence of the plaintiff in error. The answer of plaintiff in error admits the explosion of the boiler on the engine, but denied all negligence or carelessness of the company; denied that the plaintiff had received the injuries as stated; and averred that the explosion was caused by the contributory negligence of the defendant in error. There was a jury trial, which resulted in a verdict of $9,250 in favor of defendant in error.

The first error assigned by the plaintiff in error is that there was a failure on the part of the trial court to properly state to the jury the issues in the case in its instructions, and in this connection our attention is specially called to the first instruction given by the court. This instruction is as follows: “The plaintiff sues in this cause for damages alleged to be sustained by reason of the explosion of a locomotive boiler owned and operated by the defendant.” It is, perhaps, hardly fair to say that by this instruction the trial court intended to state the issues involved in the case, or any part thereof; but rather that he intended to give to the jury a short but general idea of the character or nature of the action. However that may be, it is clear that by the whole instructions given to the jury by the court the issues were virtually, and we may say critically, stated, though not particularly stated as such. The law bearing upon every issue in the case was carefully given, and the jury were informed that, if they found the facts as alleged by plaintiff in error in its answer, without referring to it, they must find for the defendant, plaintiff in error. It is true that, as a matter of practice, it would be better for the trial court to state the issues by an instruction given for that particular purpose. Yet it is not always done; and in the absence of any effort on the part of the parties to have it done, we do not think a judgment should for that reason be reversed. It has been decided by this court, and we take it to be now settled in this state, that before the complaint that an instruction is not sufficiently explicit will be regarded, the matter must have been brought to the attention of the trial court by a request for a satisfactory instruction which was refused. B. & M. R. R. Co. v. Schluntz, 14 Neb. 425;S. C. 16 N. W. REP. 439;Sioux City R. Co. v. Brown, 13 Neb. 317;S. C. 14 N. W. REP. 407.

The next question presented is that “the instructions given to the jury at the request of the plaintiff had indorsed on the margin citations and references to authorities, stated in the presence of the jury to be in support of the instructions asked.” Our attention has not been called to any part of the record which shows what was stated in the presence of the jury, nor that any objection was made thereto, and an adverse ruling made; but, passing that question, and giving the plaintiff in error the full benefit of it, we fail to see prejudicial error. Again we say that, as a matter of practice, we do not approve of such marginal references. They were evidently intended as a memorandum for the benefit of the court, and for no other purpose; so that, if the court should doubt the correctness of the law as stated in the instruction, he could turn to the authorities cited and verify their correctness. When that was accomplished, those references should, perhaps, have been obliterated. The practice ought not to be encouraged by the courts. But we fail to see the prejudice resulting to either party. It was argued that it might, and naturally would, have a tendency to more fully impress upon the minds of the jury the soundness of the law as stated in the instructions. How could it? It was the duty of the jury to accept the law as given by all the instructions as the law of the case, and that without question. The court is the sole judge of the law; the jury, of the facts. Again, what harm could possibly result from the statement in the presence of the jury that the authorities cited supported the instruction? The statement was evidently made to the court. If the authorities thus cited had been read to the court, and commented on, by way of argument, by the counsel presenting the instructions, no objection could have been made thereto; and, in fact, this is a very common custom, approved by the courts and the bar in general. If this is allowable, we can see no reason why a reference to the authorities, under the same circumstances, may not be. Each instruction given by the court upon its own motion was excepted to by the plaintiff in error; but as some of them seem to us to be more in its favor than against it, we will not examine those which are, apparently, open to this criticism.

Instruction No. 2 is as follows: “Before plaintiff can recover you must be satisfied by a preponderance of evidence that the defendant owned and was operating the locomotive boiler and engine thereto attached at the time of the alleged explosion; that there was an explosion of said boiler by reason of negligence on the part of defendant; and that this plaintiff was damaged by reason of such explosion.” Complaint is made of this instruction for the reason that “it practically told the jury that plaintiff could recover if the defendant was negligent, and left out of view the plaintiff's contributory negligence.” Whatever objection of this kind might be urged against this instruction if taken alone, we are convinced that instruction No. 3, which follows the one complained of, and instruction No. 4 of those asked by the plaintiff in error, (defendant below,) and given by the court, would remove all objection. No. 3 is as follows: “Ordinarily a plaintiff, in an action of this character for damages, cannot recover where he is guilty of contributory negligence, as contributory negligence may be of various degrees.” What is meant by the latter clause of this instruction is explained in instruction No. 5. The fourth instruction above referred to is, as modified by the court, as follows: “If the jury find from the testimony that plaintiff, prior to the explosion of the boiler upon engine No. 2, had been the engineer in charge of said engine, and was such engineer at the time of said explosion; and if you further find that the said plaintiff knew of the defects in the throat-sheet of said engine, and with such knowledge continued in the employment of said defendant, and run and operated said engine without objection, plaintiff cannot recover for any injury he may have sustained by reason of the explosion of the boiler of said engine.” When we reflect that the only contributory negligence alleged against the defendant in error consisted in the fact that he continued to operate said engine after indications of the weakness of the iron was discovered by him, and the attention of the proper agents and servants of the plaintiff in error called to the fact, with the request by him that another engine be furnished him, it becomes quite clear that these instructions are, when taken together, unobjectionable.

The facts in this case may be briefly stated to be that the defendant in error had, for about two years, been in the employ of the plaintiff in error as a locomotive engineer on its railroad; that he had had charge of this particular engine for a considerable part of this time. Towards the latter part of this employment he noticed what he conceived to be evidence of weakness in that part of the locomotive known as the throat-sheet. He called the attention of the proper officers and agents of the plaintiff in error to this fact, and, upon examination, it was thought there was no immediate danger, and he was instructed to continue with the engine until such time, in the near future, as they could effect an exchange, and cause the necessary repairs to be made. Afterwards, seeing, as he thought, increasing signs of weakness in that part of the boiler, he again, and on several occasions, called attention to the facts, when he was informed that another engine would be furnished him in a given time, and requested to continue with the one in question until that time, which he did, and for two days longer, when the accident occurred. During this time he was careful to keep the steam at a comparatively low pressure, and supposed that, with this precaution, there was no immediate danger. It is not claimed, and cannot be, that the explosion was caused or brought about by any negligent act of his. Under these circumstances, it seems to us that the true rule might be stated to be that if the defective machinery, though dangerous, is not of such character that they may not be reasonably used by the exercise of care, skill, and diligence, the servant does not assume the risk. The servant, in obedience to the requirement of the master, makes use of machinery which, though dangerous, is not so much so as to threaten immediate injury; or, where it is reasonably probable it may be safely used by extraordinary caution or skill, the master would be liable for a resulting accident. At least, such a rule is as favorable to the plaintiff in error as could, in our opinion, be reasonably required by it; and especially would this be true when it is shown that the master was fully informed of the apparent danger, and the machinery used upon his request and judgment. Snow v. Housatonic R. Co. 8 Allen, 441;...