Sprague v. Atlee
| Decision Date | 09 October 1890 |
| Citation | 46 N.W. 756,81 Iowa 1 |
| Parties | DON D. SPRAGUE, by GEO. D. SPRAGUE, His Next Friend, Appellee, v. S. & J. C. ATLEE, Appellants |
| Court | Iowa Supreme Court |
Appeal' from Superior Court of Keokuk, Lee County, HON HENRY BANK, JR., Judge.
ACTION to recover damages on account of a personal injury received by plaintiff while in the service of defendants. There was a trial by jury, and a verdict and judgment for plaintiff. The defendants appeal.
AFFIRMED.
D. F Miller, Sr., and Casey & Stewart, for appellants: The rule in this state is that an opinion does not disqualify if the juror believes he can render an impartial verdict according to the evidence. State v. Hinkle, 6 Iowa 380; State v. Munchrath, 43 N.W. 213. A boss or foreman who has no authority over his men except to direct them in their work is but a coemploye and not a vice-principal; and for the negligence of a boss or foreman the master is not responsible. Peterson v. Coal & Mining Co., 50 Iowa 673; Houser v. Railway Co., 60 Iowa 230; Foley v. Railway Co., 64 Iowa 656; and see Murphy v. Smith, 19 C. B. 361. The employer is not bound to employ the latest improvements in machinery. He is only bound to see that the machinery he does employ is reasonably safe and suitable; and it is only ordinary care for which an employer is responsible. Greenleaf v. Railway Co., 29 Iowa 14; Hunt v. Railway Co., 26 Iowa 364; Burns v. Railway Co., 69 Iowa 451, 455; Hickey v. Taafe, 12 N.E. (N. Y.) 286; Allison Manuf. Co. v. McCormick, 118 Pa.St. 519; 4 Am. St. Rep. 613; Delaware, etc., Works v. Nuttall, 13 A. 65. It is sufficient if a minor servant is informed of the danger in any way; it is not necessary that he be instructed by the master. Williams v. Churchill, 137 Mass. 243; 50 Am. Rep. 304; Atlas Engine Works v. Randall, 100 Ind. 273; 50 Am. Rep. 798; Fones v. Philips, 39 Ark. 17; 43 Am. Rep. 265; Ciriack v. Woolen Co., 146 Mass. 182; 4 Am. Rep. 307; Hickey v. Taafe, 12 N.E. (N. Y.) 286; Way v. Railway Co., 40 Iowa 343. Since Coombs v. Cordage Co., 102 Mass., cited by appellee, the Massachusetts court has announced the contrary doctrine in Ciriack v. Woolen Co., 146 Mass., and Williams v. Churchill, 137 Mass. If defects in the machinery used are known to the employe, or are discoverable by him in the exercise of ordinary care, and he remains in the employment without protest, and without inducement by promise that the defects shall be remedied, he will be presumed to have no objection to the defects, and cannot recover for injuries caused thereby. Lemley v. Casewell, 47 Iowa 159; Muldowney v. Railway Co., 39 Iowa 615, and the authorities in the last-named case cited; Kroy, Adm'x v. Railway Co., 32 Iowa 357. Appellee must be held to have assumed all the risks incidental to the employment. Youll v. Railway Co., 66 Iowa 346, 351; Heath v. Whitebreast, etc., Co., 65 Iowa 737, 740; Moran v. Harris, 63 Iowa 390, 391; 2 Thompson on Neg. 977. If an employe is directed to do one character of work, and, of his own will and without any direction of his employer, engages in another kind of work, and while engaged in the other kind of work is injured, he cannot recover from the employer for such injury. Grible v. Sioux City, 38 Iowa 390. In such action the burden of proof is on the plaintiff, to establish that he, himself, was not negligent. Muldowney v. Railway Co., 39 Iowa 615; Benson v. C. R. of Iowa 42 Iowa 192; Baird v. Murford, 29 Iowa 531. Contributory negligence on the part of a minor will defeat his recovery for an injury precisely as in the case of an adult. Atlas Engine Works v. Randall, supra; Brazil, etc., Co. v. Cain, 98 Ind. 282; Brown v. Maxwell, 6 Hill, 592; Chicago, etc., Ry. Co. v. Patchin, 16 Ill. 202; Masser v. Railway Co., 68 Iowa 605; Nagle v. Railway Co., 88 Penn. St. 35; 32 Am. Rep. 35. On the facts, plaintiff was certainly guilty of contributory negligence; and we claim that, as matter of law, he was guilty of contributory negligence. Sedgwick v. Railway Co., 76 Iowa 340; Ways v. Railway Co., 76 Iowa 393, 396; Honegsberger v. Railway Co., 33 How. 199; McGinnis v. Bridge Co., 49 Mich. 466; 8 Am. & Eng. R. R. Cases, 135. The opinion of the witnesses possessing peculiar skill is admissible whenever the subject-matter so far partakes of the nature of a science as to require a course of previous habit or study to attain to a knowledge of it. Muldowney v. Railway Co., 36 Iowa 462, 472; Hamilton v. Railway Co. and Way v. Railway Co., 40 Iowa 341, 346, are not in point. In the case at bar, the jury had before them only the model of appellant's machine. A machinist is competent to give an opinion as an expert in relation to the construction of machinery. Sheldon v. Booth, 50 Iowa 209; Huizega v. Cutler S. L. Co., 51 Mich. 272; Scattergood v. Wood, 79 N.Y. 263; 35 Am. Rep. 515, 517; Chicago v. Greer, 9 Wallace, 726, 733. The apparent intelligence and capacity of plaintiff was a proper subject for opinion evidence, even though non-expert. 7 Am. & Eng. Ency. of Law, 507; Mills v. Winter, 94 Ind. 329; State v. Shelton, 64 Iowa 333; Conn. Mutual Life Ins. Co. v. Lathrop, 111 U.S. 612, 620; McKee v. Nelson, 4 Cowen, 355; 15 Am. Dec. 384; Nagle v. Railway Co., 88 Penn. St. 35; 32 Am. Rep. 413, 416. The court erred in its statement of the issues to the jury. Tuck v. Manuf. Co., 67 Iowa 576, 580; Gamble v. Mullin, 74 Iowa 99; Kellow v. Railway Co., 68 Iowa 470, 476. "It is improper for a court to place, by frequent repetitions, too prominently before a jury any principle of law involved in the case." 2 Thompson on Trials, sec. 2331; Powell v. Messer, 18 Tex. 401; Sackett on Instructions [2 Ed. ] sec. 7, p. 15; Ludwig v. Sager, 84 Ill. 99; Am. B. Soc. v. Price, 115 Ill. 628. The instructions were long, tedious, prolix and calculated to bewilder and mislead a jury. Haney v. Caldwell, 43 Ark. 184; Sadler v. Sadler, 16 Ark. 628; Merritt v. Merritt, 20 Ill. 65, 80; Roe v. Taylor, 45 Ill. 485, 491; Mosier v. Kitchell, 87 Ill. 19; Loeb v. Weis, 64 Ind. 285. In view of the facts of the case at bar, the damages are unreasonable and excessive. As nothing but compensatory damages were claimed, he was only entitled to actual damages. Collins v. City of Council Bluffs, 35 Iowa 434; Rose v. Railway Co., 39 Iowa 246. When, therefore, it is manifest that the jury have given grossly beyond the rule of compensation, it becomes imperative duty of the court to arrest the excess. Collins v. City of Council Bluffs, 35 Iowa 432; Rose v. Railway Co., 39 Iowa 246, 256; Parsons v. Railway Co., 6 S.W. 464.
On rehearing: First. The court is mistaken in regard to the facts upon which the opinion is based. Second. The court failed to apply the law, in regard to the assumption of risks, to the facts proven and specially found by the jury. The evidence shows that neither defendant, Samuel Atlee, nor his foreman, McMurphy, gave defendant any orders to do what he was doing at the time of his injury. The rule as to the acceptance of risks should certainly be applied to this plaintiff. The general rule was not relaxed in favor of minors in the following cases: Curran v. Manuf. Co., 130 Mass. 374; s. c., 39 Am. Rep. 457; Sullivan v. Manuf. Co., 113 Mass. 396; Probert v. Phipps, 149 Mass. 258; 21 N.E. 370; Coffey v. Chapal, 2 N. Y. Sup.; Oszkoscil v. Pencil Co., 6 N.Y.S. 501; Crowley v. Pac. Mills, 19 N.E. 344 (Mass.) . Minor servants are held to assume the obvious risks of their service. Smith v. Irwin, 18 A. (N. J.) 853; Beckham v. Hillier, 47 N. J. Law, 14; Foster v. Pusey, 14 N.E. 545 (Del.) ; Note to the case of Hickey v. Taafe, in 26 Am. Law Reg. 734, where many of the leading cases upon this subject are reviewed.
James C. Davis, for appellee: The claim that contributory negligence as a matter of law existed as a defense was not made in the court below, and being raised for the first time in this court cannot be considered. See authorities in McClain's Digest, sec. 145, p. 48. The defense of contributory negligence, when applied to adults, if the facts are at all in dispute, must be submitted to the jury. Greenleaf v. Railway Co., 29 Ia. 36; Greenleaf Adm'r, v. Railway Co., 33 Ia. 53; Whitsett v. Railway Co., 67 Ia. 159, sec. 7. In cases where personal injuries to a minor are involved the doctrine of contributory negligence only applies so far as the age, experience and intelligence of the minor will permit it. McMillan v. Railway Co., 46 Ia. 233; Benton v. Railway Co., 55 Ia. 501; Baker v. Railway Co., 35 N.W. 838; Kunz v. City of Troy, 10 N.E. 445; Walters v. Railway Co., 41 Ia. 75; Mackey v. City of Vicksburg, 2 S. R. 179; Cassida v. Railway Co., 13 P. 441; Muchlhausen v. Railway Co., 2 S.W. 315; Huff v. Ames, 19 N.W. 623. There was no error in excusing Richard Pritchett as a juror for cause. Code, sec. 2772, subdiv. 9; City of Albia v. O' Hara, 64 Ia. 298; Wisehurt v. Diez, 67 Ia. 122. The refusal of the courts to permit Carter, a witness for defendant, to testify whether the defendant's machine was any more dangerous than the other kinds of guides was not erroneous. Muldowney v. Railway Co., 36 Ia. 472; Hamilton v. Railway Co., 36 Ia. 36; Way v. Railway Co., 40 Ia. 346; Barnes v. Newton, 46 Ia. 569, sec. 3; Spears v. Mt. Ayr, 66 Ia. 724. An inquiry as to whether or not a witness is, according to the opinion of another witness, of "average" intelligence, or what he appeared to understand, is of too uncertain a character to be the subject of judicial inquiry. Brown v. Railway Co., 69 Ia. 453, sec. 1, and cases cited. This court said in Wilson v. McAdams, 10 Ia. 590: "A party cannot, on the trial of a cause in the district court, consent to the exclusion of certain evidence and afterward predicate an exception and assignment of error on the order excluding it." See, also: Parsons v. Hedges, 15 Ia. 119; Burns v. Oliphant...
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