Tucker v. Palmberg

• Decision Date: 13 March 1916
• Court: Idaho Supreme Court
• Parties: J. W. TUCKER, Respondent, v. C. G. PALMBERG and JOHN MATTSON, Partners Doing Business Under the Name of PALMBERG & MATTSON, Appellants

155 P. 981

28 Idaho 693

J. W. TUCKER, Respondent, v. C. G. PALMBERG and JOHN MATTSON, Partners Doing Business Under the Name of PALMBERG & MATTSON, Appellants

Supreme Court of Idaho

March 13, 1916

PERSONAL INJURIES-NEGLIGENCE OF MASTER-SAFETY OF APPLIANCES-SUFFICIENCY OF EVIDENCE - MOTION FOR NONSUIT - CONTRIBUTORY NEGLIGENCE-INSTRUCTIONS.

1. Held, that there was sufficient evidence to be considered by the jury upon the question of negligence of the defendants in failing to furnish reasonably safe appliances for the prosecution of the work in which the plaintiff was engaged at the time of receiving the injury, and it was not error for the court to deny the motion for a nonsuit.

2. It is the duty of the master to furnish the servant with reasonably safe appliances with which to perform the work required to be performed, and the servant is chargeable only with the duty of taking notice of conditions in regard to the appliances which were patent, obvious or known to him.

3. The duty of providing a reasonably safe place and reasonably safe machinery rests on the master, and a reasonably prudent master would ordinarily use a higher degree of care to keep the place of work reasonably safe than would the servant who occupied it.

4. Where the facts are disputed and from them reasonable and prudent men might disagree as to the question of negligence that question then becomes a question of fact, and under proper instructions must be submitted to the jury.

5. Under the provisions of the employers' liability law (Sess. L. 1909, p. 34), in an action by a servant for personal injuries, the question whether plaintiff assumed the risk or was negligent is, under the evidence, for the jury.

6. To entitle a plaintiff in a personal injury case to recover special damages, they must be specially pleaded, and where the court instructs the jury that "if you find for the plaintiff, you will allow him a fair compensation for the loss of time from his business or occupation, his loss of capacity, if any, for the performance of the kind of labor for which he is fitted," and there is no claim made in the complaint for any special damages by reason of such conditions, the giving of such instruction is improper, but the giving of it does not constitute prejudicial or reversible error where the evidence shows that the amount of damages awarded by the verdict of the jury was not excessive when confined only to those elements of damage which were properly pleaded and proved.

7. Held, that the instructions given by the court, taken as a whole, fairly cover the law of the case, and that it was not reversible error for the court to refuse to give certain instructions requested by the defendants.

[As to right to recover in action for tort, special damages properly pleaded consisting of liability incurred but not paid, see note in Ann.Cas. 1913D, 761]

APPEAL from the District Court of the Fifth Judicial District for Bannock County. Hon. J. J. Guheen, Judge.

Action to recover for personal injuries. Judgment for plaintiff. Affirmed.

Judgment of the lower court affirmed. Costs awarded in favor of respondent.

Budge &amp Barnard, for Appellants.

It is not proof of negligence merely to show that a certain appliance gave way whereby respondent suffered injury. (Dobbins v. Brown, 119 N.Y. 188, 23 N.E. 537; Consolidated Kansas City Smelting etc. Co. v. Allen, 64 Kan. 70, 67 P. 436; Atchison, T. & S. F. R. Co. v Wagner, 33 Kan. 660, 7 P. 204; Searles v. Manhattan Ry. Co., 101 N.Y. 661, 5 N.E. 66; Peirce v. Kile, 80 F. 865, 26 C. C. A. 201; Byland v. E. I. Du Pont etc. Powder Co., 93 Kan. 288, L. R. A. 1915F, 1000, 144 P. 251; Huff v. Austin, 46 Ohio St. 386, 15 Am. St. 613, 21 N.E. 864.)

The fact of the injury raises no presumption of such negligence. (Lane v. Missouri P. Ry. Co., 64 Kan. 755, 68 P. 626.)

"To sustain an action for damages occasioned by the alleged negligence of another, it is necessary for the claimant, not only to show that the injury occurred, but to produce sufficient evidence to show prima facie that such injury occurred through the fault of the other." (Brown v. Union P. R. Co., 81 Kan. 701, 106 P. 1001, 29 L. R. A., N. S., 808; Byland v. E. I. Du Pont etc. Powder Co., supra; Duncan v. Atchison etc. Ry: Co., 86 Kan. 112, 119 P. 356, 51 L. R. A., N. S., 565; Root v. Cudahy Packing Co., 88 Kan. 413, 129 P. 147.)

Respondent is not entitled to recover for the additional reason that he assumed the risk of his employment. (Smith v. Potlatch Lumber Co., 22 Idaho 782, 128 P. 546; Drake v. Union P. R. Co., 2 Idaho 487, 21 P. 560; Minty v. Union P. R. Co., 2 Idaho 471, 21 P. 660, 4 L. R. A. 409; Riverside Iron Works Co. v. Green, 79 Kan. 588, 100 P. 482; Rush v. Missouri P. Ry. Co., 36 Kan. 129, 12 P. 582; Vincennes Water Supply Co. v. White, 124 Ind. 376, 24 N.E. 747; Griffin v. Ohio & M. R. Co., 124 Ind. 326, 24 N.E. 888; Goure v. Storey, 17 Idaho 352, 105 P. 794.)

To entitle one to recover special damages, they must be specially pleaded. (Sommerville v. Idaho Irr. Co., 21 Idaho 546, 123 P. 302.)

For the reason that the jury were permitted to, and probably did, include special damages in their award, notwithstanding the state of the pleadings and evidence, the instruction of the court was clearly erroneous. (Tarr v. Oregon Short Line R. Co., 14 Idaho 192, 125 Am. St. 151, 93 P. 957; Peatt v. City of Ottumwa, 136 Iowa 221, 113 N.W. 831; Baker v. Oughton, 130 Iowa 35, 106 N.W. 272.)

"It is error for the trial court to refuse to give a requested instruction which fairly states the defendant's theory as to the cause of the accident, where there is evidence which would sustain such theory." (McKenna v. Omaha etc. R. Co., 95 Neb. 643, 146 N.W. 1014; Hancock v. Stout, 28 Neb. 301, 44 N.W. 446; De Foe v. St. Paul City Ry. Co., 65 Minn. 319, 68 N.W. 35.)

"It should declare the law applicable to the facts contended for, and submit the case to the jury upon the theory of both parties." (Fiore v. Ladd, 25 Ore. 423, 36 P. 572, 573; Christy v. Des Moines City R. Co., 126 Iowa 428, 102 N.W. 194; Jones v. City of Caldwell, 20 Idaho 5, 116 P. 110, 48 L. R. A., N. S., 119; Spurrier Lumber Co. v. Dodson, 30 Okla. 412, 120 P. 934.)

"Appellant had an undoubted right to have the court instruct the jury with regard to the law upon every material issue in the case in support of which there was some evidence." (Dignan v. Spurr, 3 Wash. St. 309, 28 P. 529; Chicago R. I. & P. Ry. Co. v. Pitchford (Okl.), 143 P. 1146; Leach v. Hepler, 32 Okla. 729, 124 P. 68; McKinney v. Carson, 35 Utah 180, 99 P. 660.)

McDougall & Jones, for Respondent.

There was ample evidence to go to the jury upon the question of the negligence of the defendants in failing to furnish safe appliances for the work intended to be done. (Mulligan v. Colorado Fuel & Iron Co., 20 Colo. App. 198, 77 P. 977.)

And it was not the duty of the plaintiff to examine them. (Hunt v. Moran (Utah), 150 P. 953; Roche v. Denver & R. G. R. Co., 19 Colo. App. 204, 73 P. 880; Burnside v. Peterson, 46 Colo. 382. 96 P. 256, 17 L. R. A., N. S., 76; Chiara v. Stewart Min. Co., 24 Idaho 473, 135 P. 245; Maloney v. Winston Bros. Co., 18 Idaho 740, 111 P. 1080, 47 L. R. A., N. S., 634; Walsh v. Winston Bros. Co., 18 Idaho 768, 111 P. 1090; 3 Labatt, Master and Servant, sec. 1137; Carlock v. Denver & R. G. R. Co., 55 Colo. 146, 133 P. 1103.)

In the absence of knowledge to the contrary, a servant has a right to presume that his master has exercised due care and diligence to fulfill the obligations imposed by law, and he does not assume the risk consequent upon failure of the master to discharge his duties. (26 Cyc. 1183; Emporia v. Kowalski, 66 Kan. 64, 71 P. 232; Goldthorpe v. Clarke-Nickerson Lumber Co., 31 Wash. 467, 71 P. 1091; Craesafulli v. Winston Bros. Co., 18 Idaho 158, 108 P. 740; Maw v. Coast Lumber Co., 19 Idaho 396, 398, 114 P. 9; Crawford v. Bonners Ferry Lumber Co., 12 Idaho 678, 87 P. 998, 10 Ann. Cas. 1.)

The question of fact as to the negligence was a proper subject for the consideration of the jury. (Wheeler v. Oregon R. & Nav. Co., 16 Idaho 375, 102 P. 347; Knauf v. Dover Lumber Co., 20 Idaho 773, 120 P. 157.)

The master is not relieved by use of an insufficient hook because it had been used before without injury. (Chiara v. Stewart Min. Co., supra; Maloney v. Winston Bros. Co., supra; Walsh v. Winston Bros. Co., supra; Ocean Steamship Co. v. Matthews, 86 Ga. 418, 12 S.E. 632.)

The duty is not upon the employee, but upon the employer, to inspect and know the strength of the appliances used. (James B. Clow & Sons v. Boltz, 92 F. 572, 34 C. C. A. 550; Cyc. 1145.)

Where the instructions taken as a whole fairly submit the case to the jury, the verdict will not be disturbed on account of mere inaccuracy in some of the instructions. (Barrow v. B. R. Lewis Lumber Co., 14 Idaho 698, 95 P. 682; Golden v. Spokane etc. R. Co., 20 Idaho 526, 118 P. 1076; Lufkins v. Collins, 2 Idaho 256, 10 P. 300; Park v. Johnson, 20 Idaho 548, 119 P. 52.)

The same rule will apply where instructions are refused. (Hopkins v. Utah N. R. Co., 2 Idaho 300, 13 P. 343; O'Connor v. Langdon, 3 Ida, 61, 26 P. 659.)

Even though there may be a repetition of law in the case. (North v. Woodland, 12 Idaho 50, 85 P. 215, 6 L. R. A., N. S., 921.)

Where the court instructed the jury that they must be governed by the evidence in assessing damages, and no claim or proof of damage on account of loss of time was made, and it is clear from the record that the jury did not consider such elements in assessing damages, an erroneous instruction to the effect that loss of time was a proper element to be considered is not sufficient to work a reversal. (Tarr v. Oregon Short Line R. Co., 14 Idaho 192, 196, 125 Am. St. 151, 93 P 957; Golden...