Walsh v. Winston Bros. Co.

• Citation: 18 Idaho 768,111 P. 1090
• Parties: MARTIN WALSH, Respondent, v. WINSTON BROS. COMPANY, a Corporation, Appellant
• Decision Date: 14 May 1910
• Court: United States State Supreme Court of Idaho

111 P. 1090

18 Idaho 768

MARTIN WALSH, Respondent, v. WINSTON BROS. COMPANY, a Corporation, Appellant

Supreme Court of Idaho

May 14, 1910

MOTION FOR POSTPONEMENT OF TRIAL-FELLOW-SERVANT-ASSUMPTION OF RISK-DUTY OF MASTER-CONFLICT OF EVIDENCE-MISCONDUCT OF JUROR-NEW TRIAL.

(Syllabus by the court.)

1. A motion for a new trial is addressed to the sound discretion of the trial court, and the court's ruling thereon will not be disturbed on appeal unless it appears there has been an abuse of such discretion.

2. A party is not entitled to a continuance without showing due diligence and the use of legal means to procure the desired evidence, or a clear and sufficient excuse for not resorting to such legal means. A bare request to furnish the evidence is in no sense a compliance with the requirements of the law.

3. In an action to recover damages for personal injuries, evidence which tends to show the respective duties and relations of the alleged principal and his employees, as well as their relations to the business generally, and all of the surrounding circumstances, is admissible to aid in determining whether the injured employee sustained such injury by reason of the negligence of a fellow-servant or of a vice-principal.

4. Evidence in this case examined and held to support the verdict of the jury.

5. Maloney v. Winston Bros. Co., ante, p. 740, 111 P. 1080 cited and approved as the law governing this case.

6. It is not error for the trial court to deny a motion for a new trial on account of the intoxication of a juror, where it clearly appears that such intoxication is brought on by the indulgence of the juror during a recess of the court and when the jury is permitted to separate, and no motion is made at the time that the panel be discharged and a new jury selected, or that the particular juror be discharged and another juror selected in his stead, or any objection made to resuming the trial on account of the intoxication of such juror, and it further clearly appears as a fact that the trial was not resumed until the juror had fully recovered his normal condition and faculties, although such conduct of the juror calls for severe censure and punishment from the trial court.

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. W. W. Woods, Judge.

An action to recover damages for personal injury. Judgment for plaintiff. Defendant appeals. Judgment modified and affirmed.

Modified and affirmed, with costs in favor of the respondent.

Kerns &amp Ryan, for Appellant.

The accident in the case at bar was caused from the nature of the work and not from the place where he was working. It was one of the risks incident to the kind of work in which he was employed. This we believe is a true test. (Cullen v. Norton, 126 N.Y. 1, 26 N.E. 905; 2 Labatt on Master and Servant, sec. 600; Perry v. Rogers, 157 N.Y. 251, 51 N.E. 1021; Capasso v. Woolfolk, 163 N.Y. 472, 57 N.E. 760; Vitto v. Farley, 36 N.Y.S. 1105, 15 Misc. 153; Porter v. Silver Creek & M. Coal Co., 84 Wis. 418, 54 N.W. 1019.)

After the defendant has furnished the proper instrumentalities and competent employees, it has discharged its duty. It is presumed, in the absence of any evidence to the contrary, that any duty which the law imposes has been properly performed and a servant must, in order to make out a prima facie case which will entitle him to go to the jury, produce some evidence which tends to destroy the force of the presumption in the given instance. (Labatt on Master and Servant, sec. 832; Patton v. Texas & Pacific Ry. Co., 179 U.S. 658, 21 S.Ct. 275, 45 L.Ed. 361; Stearns v. Ontario Spinning Co., 184 Pa. 519, 63 Am. St. 807, 39 A. 292, 39 L. R. A. 842.)

Upon problematical causes negligence cannot be predicated. (Minty v. Union Pacific R. Co., 2 Idaho 471, 21 P. 660.)

"The master is not under any duty to warn or instruct servants who have already enjoyed an ample opportunity to become acquainted with the danger. Servants are expected to keep their eyes open, and exercise such reasonable care for their own safety as their situation permits." (4 Thompson on Negligence, sec. 4065; McGowan v. Nelson, 36 Mont. 67, 92 P. 40.)

"A master is not required to furnish the servant with a safe place to work as against a danger which is temporary, and arises from the hazard and the progress of the work itself, and is known to the servant, who in such case assumes the risk therefrom." (Davis v. Mining Co., 117 F. 122, 54 C. C. A. 636; Armour v. Hahn, 111 U.S. 313, 4 S.Ct. 433, 28 L.Ed. 440; Nolan v. Shickle, 3 Mo.App. 300; Schultz v. Pacific Ry. Co., 36 Mo. 13; Koontz v. C. R. I. & P. R. Co., 65 Ia. 224, 54 Am. Rep. 5, 21 N.W. 577; Sjogren v. Hall, 53 Mich. 274, 18 N.W. 812; McKee v. C. R. I. & P. R. Co., 83 Ia. 616, 50 N.W. 209, 13 L. R. A. 817.)

"The foreman of a gang of laborers employed by a contractor is a fellow-servant of one of the gang." (Anderson v. Winston, 31 F. 528; McDonald v. Buckley, 109 F. 290, 48 C. C. A. 372; New England Ry. Co. v. Conroy, 175 U.S. 323, 20 S.Ct. 85, 44 L.Ed. 181; Armour v. Hahn, supra; Chicago & Ohio C. & C. Co. v. Norman, 49 Ohio St. 598, 32 N.E. 857; Beesley v. Wheeler Co., 103 Mich. 196, 61 N.W. 658, 27 L. R. A. 266; Shaw v. Gold Mines Co., 31 Mont. 138, 77 P. 515; Larsen v. Le Doux, 11 Idaho 49, 81 P. 600.)

Gray & Knight, John H. Wourms, and Walter H. Hanson, for Respondent.

It was the duty of the appellant to furnish and maintain a reasonably safe place for the plaintiff to work. (Bunker Hill & Sullivan M. & C. Co. v. Jones, 130 F. 813, 65 C. C. A. 363; Rowden v. Schoenherr-Walton M. Co., 136 Mo.App. 376, 117 S.W. 695; Trihay v. Brooklyn Lead Min. Co., 4 Utah 468, 11 P. 612; Union P. Ry. Co. v. Jarvi, 53 F. 65, 3 C. C. A. 433; Ross v. Shanley, 85 Ill. 390, 56 N.E. 1105; Illinois Steel Co. v. Schymanowski, 162 Ill. 447, 44 N.E. 876; Ohio Copper Min. Co. v. Hutchings, 172 F. 201, 96 C. C. A. 653.)

The master is liable for the negligence of an employee who represents him in the discharge of his personal duties to his servants. (Larsen v. Le Doux, 11 Idaho 49, 81 P. 600; Bunker Hill & Sullivan M. & C. Co. v. Jones, supra; Hough v. Texas & Pacific Ry. Co., 100 U.S. 213, 25 L.Ed. 612; Crist v. Wichita Gas, Electric Light & Power Co., 72 Kan. 135, 83 P. 199.)

The facts in this case show that there was nothing to indicate to the plaintiff, from such inspection as he could or was permitted under the rules and practice of the tunnel to make, that he was assuming any such danger as the accident showed existed. He was justified in assuming that the master, either personally or through its representative, had properly inspected and safeguarded the place in which he was to work. (Choctaw etc. R. Co. v. McDade, 191 U.S. 64, 24 S.Ct. 24, 48 L.Ed. 96; Texas & Pacific Ry. v. Archibald, 170 U.S. 665, 18 S.Ct. 777, 42 L.Ed. 1188; Texas & Pacific Ry. Co. v. Swearingen, 196 U.S. 51, 25 S.Ct. 164, 49 L.Ed. 382; Choctaw v. Holloday, 191 U.S. 334, 24 S.Ct. 102, 48 L.Ed. 207; Kreigh v. Westinghouse, Church, Kerr & Co., 214 U.S. 249, 53 L.Ed. 984; Ohio Copper Min. Co. v. Hutchings, 172 F. 201, 96 C. C. A. 653; Island Coal Co. v. Risher, 13 Ind.App. 98, 40 N.E. 158; Diamond Coal Co. v. Cuthbertson, 166 Ind. 290, 76 N.E. 1060; National Steel Co. v. Hore, 155 F. 62-65, 83 C. C. A. 578.)

Even though the trial court refused to allow a question directed to a juror which might have demonstrated his incompetency, yet if the appellant did not make a peremptory challenge of such juror and had not exhausted all of his peremptory challenges, such error on the part of the trial court would not be reversible error. (Asevado v. Orr, 100 Cal. 293, 34 P. 777; Anarchists' Case, 122 Ill. 1, 3 Am. St. 320, 12 N.E. 865, 17 N.E. 898; Salazar v. Taylor, 18 Colo. 538, 33 P. 369; Williams v. State, 30 Tex. App. 354, 17 S.W. 408; Davidson v. Bordeaux, 15 Mont. 245, 38 P. 1075.)

STEWART, J., AILSHIE, J. Sullivan, C. J., and Ailshie, J., concur.

OPINION

STEWART, J.

This is an action brought to recover damages for personal injuries alleged to have been sustained by the plaintiff and caused by the defendant's negligence while in the employ of the defendant in the construction of a certain tunnel along the line of the Chicago, Milwaukee and St. Paul railroad known as the St. Paul Pass tunnel, being a tunnel beneath the divide of the Bitter Root Mountains between the states of Idaho and Montana. The cause was tried to a jury and a verdict returned for the plaintiff in the sum of $ 20,000. A motion for a new trial was made and overruled. This appeal is from the judgment and from the order overruling a motion for a new trial.

When the case was called for trial on June 1, 1909, the appellant made a motion for a postponement of the trial until the next term of court. This motion was based upon the affidavit of one E. G. Trimper. In this affidavit Mr. Trimper swears that he is the agent of the Ocean Accident Insurance Corporation who assured Winston Bros. Company with respect to the employees engaged in the construction of the St. Paul Pass tunnel, and as such has had charge, and it has been made his duty to prepare the above-entitled cause for trial; that after the case was set for trial on the day of April, 1909, he began to investigate and locate the whereabouts of the witnesses and arrange for their attendance; that one William Ryan is an important witness. Then follows what it is claimed Ryan will testify to. The affidavit states that the affiant is informed and believes that Ryan is in the state of California and beyond the jurisdiction of the court, and that he could not be located in time to take his deposition before the day set for the trial; and affiant believes that if the action be continued, by the next term of c...