Swift & Co. v. Short

• Decision Date: 06 March 1899
• Docket Number: 1,081.
• Citation: 92 F. 567
• Parties: SWIFT & CO. v. SHORT.
• Court: U.S. Court of Appeals — Eighth Circuit

92 F. 567

SWIFT & CO. v. SHORT.

No. 1,081.

United States Court of Appeals, Eighth Circuit.

March 6, 1899

O. H Dean (William Warner, James Gibson, W. D. McLeod, and Hale Holden, on the brief), for plaintiff in error.

Frank P. Walsh (F. F. Rozzelle and William P. Borland, on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge.

This is a suit for personal injuries which was brought by Walter C Short, the defendant in error, against Swift & Co., a corporation, the plaintiff in error, the injuries complained of having been sustained while Short was an employe of the defendant company. The evidence showed, without substantial contradiction, that while the plaintiff below was in temporary charge of the dynamo room in the defendant company's packing-house plant located at Kansas City Kan., during the absence of the regular foreman, an iron shoe, which formed a part of a friction clutch, flew off from a rapidly revolving wheel, to which it was attached for the purpose of serving as a brake to the wheel, striking the plaintiff in the head, and inflicting severe injuries; that for two or three days prior to the accident, there had been a crack in the shoe, or in one of the arms by which it was held in place, which fact was known to those persons in the defendant's service whose duty it was to cause the same to be repaired; that on the day of the accident, and prior thereto, an attempt had been made to remedy the defect in the clutch, by wiring it so as to hold the shoe securely in place, which work had not been properly done; and that, shortly thereafter, one of the shoes which formed a part of the clutch flew off, with the result heretofore stated. There was a controversy before the jury as to whether the defective wiring last referred to was done by the plaintiff himself or under his direction, or whether it was done by other employes in the defendant's service, without the plaintiff's knowledge.

The plaintiff testified in his own favor, and in substance, that he had been ordered to take charge of the dynamo room on the day of the accident, during the temporary absence of the regular foreman; that he took charge thereof, in pursuance of such order, in the afternoon of that day; that shortly after assuming charge of the same, and while standing in line with the wheel to which the clutch was attached, which was then in rapid revolution, the shoe flew off, and inflicted the injuries complained of; that, previously to the injury, he had not assisted in wiring the clutch, and was not aware of any insecurity in the machinery of which he had been appointed to take charge. On the other hand, the defendant company offered evidence which tended to show that the plaintiff took charge of the dynamo room some time during the forenoon of the day of the accident, instead of during the afternoon; that he was advised, at the time of assuming charge of the room, that the fastenings of the clutch were insecure; that he was directed to stop the machinery at noon, and examine the clutch; that he did so, and, finding the shoe insecure, tried to fasten it with wire; that the wiring was not done in such a way as to render the shoe secure, and that he was advised of that fact by the machinists who assisted in the operation, and who worked under his directions.

As the issue of fact last explained was the only one concerning which there was any serious conflict in the testimony, and as the verdict was in favor of the plaintiff, we are satisfied that the jury found that the plaintiff did not assist in wiring the clutch, and was not responsible for its condition at the time of the accident. It is contended, however, that the trial court should have directed a verdict against the plaintiff because of his contributory negligence, or voluntary assumption of a known risk, and that an error was committed in refusing such an instruction. The sole basis for this contention seems to be that the plaintiff was concluded on this issue by the evidence of certain of his own witnesses. It is not denied that the plaintiff's own testimony, if credible, exculpated him from all blame; but it is said, in substance, that inasmuch as two of his witnesses-- one of them being the foreman of the dynamo room whom the plaintiff had temporarily superseded on the day of the accident-- made some statements while on the stand which are in apparent conflict with some of the plaintiff's statements, and which also tended to corroborate the evidence of the defendant's witnesses, therefore the plaintiff's evidence which showed that he was free from all blame should have been disregarded, and treated by the trial court as wholly undeserving of credit. Concerning this claim, it is sufficient to say that we are not aware of any such rule of evidence as counsel for the defendant company have invoked. A litigant may not introduce testimony for the purpose of showing that the general character for truth and veracity of one of his own witnesses is bad, but this rule does not go to the extent of preventing him from showing the verity of any particular fact or transaction which he wishes to establish. He may call witnesses to prove a particular fact, although their evidence with relation thereto contradicts the testimony of other witnesses who have previously testified in his favor with reference to the same transaction. Moreover, under some circumstances, where a party has been deceived by one of his witnesses, who has given testimony which was unexpected, the better view is that the party so deceived may impeach the witness to the extent...