Stephens v. Elliott

• Decision Date: 28 October 1907
• Citation: 92 P. 45,36 Mont. 92
• Parties: STEPHENS v. ELLIOTT.
• Court: Montana Supreme Court

92 P. 45

36 Mont. 92

STEPHENS v. ELLIOTT.

Supreme Court of Montana

October 28, 1907

Appeal from District Court, Madison County; Lew L. Callaway, Judge.

Action by Ed Stephens against Hugh Elliott. From a judgment for plaintiff, defendant appeals. Affirmed.

Clark & Duncan, for appellant.

Kremer Sanders & Kremer and S. V. Stewart, for respondent.

HOLLOWAY J.

This is an action for damages for personal injuries. The plaintiff was employed by the defendant to work in Madison county. Soon after his employment he was set to work running a whim, used for hoisting ore from the Lehigh mine, owned and operated by the defendant near Norris. On May 6, 1905, while engaged in this business, the plaintiff was injured, and he brought this action to recover damages. The jury returned a verdict in his favor for $2,500, and from the judgment entered on the verdict and from an order denying him a new trial the defendant has appealed.

At the close of plaintiff's case, the defendant moved the court for a nonsuit, which was overruled, and at the close of all the testimony made a motion for an instructed verdict, which was denied. These rulings of the court, together with the order denying the defendant a new trial, are assigned as erroneous, presenting the question of the sufficiency of the evidence to entitle the plaintiff to recover. No useful purpose would be served in giving even a brief summary of the evidence. Suffice it to say, we have examined it all and fully concur in the ruling of the trial court in each of the orders above. We think the plaintiff made out a prima facie case, which was sufficient to defeat the motion for a nonsuit. And, while the testimony given on behalf of the defendant is reasonably clear, and, if believed by the jury would have entitled him to a verdict, it was contradictory of that given on behalf of the plaintiff and presented issues which were properly submitted to the jury. "The defendant's evidence, though contradictory, in some particulars, of that put in by the plaintiff, did not make out a case so clear and indisputable as would have justified the court in giving the peremptory instruction requested." Lincoln v. Power, 151 U.S. 436, 14 S.Ct. 387, 38 L.Ed. 224. A verdict having been returned in favor of the plaintiff, the motion for a new trial upon the ground of the insufficiency of the evidence to sustain it was addressed to the sound, legal discretion of the trial court which heard the evidence as given from the witness stand, had opportunity to observe the witnesses, and was therefore better qualified to judge of the character of the testimony than this court, and with the order denying a new trial upon that ground we are not inclined to interfere. Fournier v. Coudert, 34 Mont. 484, 87 P. 455, and cases cited.

Exception is also taken to certain rulings of the trial court in admitting evidence on behalf of the plaintiff. It is contended that the court erred in permitting the plaintiff, over objection of defendant, to testify that he was employed by the defendant to work as a teamster, and it is said that this evidence is incompetent and irrelevant under the issues made by the pleadings; and this question is presented, also, by certain instructions given by the court. The allegation in the complaint is that the plaintiff was injured while he "was pursuing his occupation of running said whim," etc. But we cannot see anything inconsistent between that allegation and plaintiff's contention that he was actually employed as a teamster, but subsequently put to work running the whim against his objections and protests. While actually engaged in running the whim, that was his "occupation," even though he was employed for a different character of work. We think the evidence was properly admitted, and that the court correctly charged the jury that they might take into consideration the fact, if it was a fact, that the plaintiff was employed for a different kind or character of work, but put temporarily at work running the whim, in order to determine whether the defendant, as master, had discharged his duty towards the servant in instructing him as to the dangerous character of such employment, if the jury found that the work of running such whim was of a peculiarly dangerous character. If the jury found that the plaintiff was not employed for this particular work, that he was not a skilled mechanic, that he was ignorant of the machinery which he was required to operate, and that the work of operating it was of a peculiarly dangerous character, and these facts were known to the defendant, or ought to have been known to him, then it was the duty of the employer to give to the employé instructions as to the dangers incident to such employment. In Baxter v. Roberts, 44 Cal. 187, 13 Am. Rep. 160, the rule is announced as follows: "Nor is there any doubt that if the employer have knowledge or information showing that the particular employment is from extraneous causes known to him hazardous or dangerous to a degree beyond that which it fairly imports or is understood by the employé to be, he is bound to inform the latter of the fact or put him in possession of such information. These general principles of law are elementary and firmly established. They are usually applied to cases in which the employé has sustained injury by reason of some defect or unsoundness in the machinery or materials unknown to him about which he is employed to perform labor and of which the employer knew, or might have known in the exercise of ordinary care and vigilance upon his part." The act of negligence charged against the defendant is his failure to exercise reasonable care in providing plaintiff with suitable and safe machinery with which to work. Among other particular defects in the machinery mentioned is a worn wire cable in which some of the strands are alleged to have been broken and pieces of wire projecting from the cable. While plaintiff was testifying in his own behalf, he was asked by his counsel if the cable was "as smooth as a pencil, or like a new piece of rope." The question was objected to as leading, but the objection was overruled. the answer of the witness was not at all responsive to the question, and, as a motion to strike out the answer was not made, the defendant cannot now complain, and it is unnecessary for us to consider whether in fact the question as formed was leading.

Dr. Fain, who attended the plaintiff at the time of his injury and for some two months thereafter, was permitted by the court, over the objection of the defendant, to make use of plaintiff's injured arm to demonstrate or explain his testimony. The reason urged for the objection is that the testimony already given by the plaintiff was to the effect that other doctors had operated on the injured arm after Dr. Fain ceased to give it his care and before the trial. But, conceding this to be true, we wholly fail to understand how it could affect the testimony of Dr. Fain in so far as his conclusions were based upon facts obtained by him at the time of the injury, or why he could not by the use of the injured arm make his testimony all the more easily understood by the jury. Such an inspection of the injured limb in the presence of the jury is usually permitted; at least, the application to make such inspection is addressed to the sound, legal discretion of the trial court, and its ruling will not be disturbed except for a manifest abuse of such discretion. Swift & Co. v. Rutkowski, 182 Ill. 18, 54 N.E. 1038. We fail to see wherein the court abused its discretion in this instance. For a very thorough discussion of this subject of autoptic proference, see 2 Wigmore on Evidence, c. 37.

Dr. Bradley also testified on behalf of the plaintiff, although he had never seen the injured arm until two days before the trial. By this witness the plaintiff was apparently attempting to anticipate and refute a theory of defendant that plaintiff was simulating, and that in fact his injuries were not so serious as he claimed, and also to show that the injuries were of a permanent character, as claimed by the plaintiff in his complaint. So far as the testimony given was directed to the question of plaintiff's simulating, it might have come more properly in rebuttal; but this was not the objection made to it, and, in any event, the order of proof is largely within the discretion of the trial court. Campbell v. Rankin, 2 Mont. 363; Tague v. John Caplice Co., 28 Mont. 51, 72 P. 297. The objection offered was that it was incompetent and irrelevant, but we are not able to agree with counsel in either of these contentions. The defendant offered testimony tending to show that plaintiff had made exhibitions of the use of his injured arm some time after the accident and had carried a bucket with contents of considerable weight in the hand of his injured arm. The evident purpose of this evidence was to contradict the testimony of plaintiff that since his injury he had not been able to grasp anything with his right hand, and to leave the impression that plaintiff was in fact simulating. As we have said, the logical order of proof probably was not followed; but the testimony of Dr. Bradley that the plaintiff could not simulate the condition which the witness found, or the consequences of such condition, was both competent and relevant.

Dr Bradley was also permitted to make an experiment, or rather demonstration, before the jury. He testified that the motor nerves of plaintiff's right arm were entirely destroyed, and that in sympathy with this condition the sensory nerves, which control the feeling in the hand, had become so far paralyzed that ...