Ward v. Inter-Island Steam Navigation Co.

• Decision Date: 24 March 1915
• Citation: 22 Haw. 488
• Parties: GEORGE E. WARD v. INTER-ISLAND STEAM NAVIGATION COMPANY, LIMITED, A HAWAIIAN CORPORATION.
• Court: Hawaii Supreme Court

22 Haw. 488

GEORGE E. WARD

v.INTER-ISLAND STEAM NAVIGATION COMPANY, LIMITED, A HAWAIIAN CORPORATION.

Supreme Court of the Territory of Hawai‘i.

Argued February 15, 1915.

Decided March 24, 1915.

OPINION TEXT STARTS HEREERROR TO CIRCUIT COURT, FIRST CIRCUIT. HON. C. W. ASHFORD, JUDGE.

Syllabus by the Court

If the master negligently furnishes unsuitable appliances for conducting his business by reason of which his servant is injured, he is responsible in damages to the servant for such injuries, although the latter may have been negligent, unless the negligence of the latter was the proximate cause, or a proximate cause, of the injury.

Whether an act of negligence is the proximate cause of an injury is a question for the jury to decide where the evidence is conflicting; or where the answer depends upon matters of discretion, experience and judgment; and in all cases where more than one inference may be reasonably drawn from the facts which the evidence tends to prove.

The master is not exempt from liability for an injury to his servant, caused by a defective appliance, by reason of an intervening act or cause, where the latter grew out of, was related to, and made necessary by, the negligence of the master in furnishing such defective appliance.

An instruction which told the jury to take into consideration the interest of the plaintiff in the result of the suit when weighing his testimony was properly refused, especially as the court had instructed the jury that in weighing the evidence of witnesses they should take into consideration the interest, if any, of the witness, in the result of the suit.

A verdict for $13,000 damages held to be not excessive where the evidence shows that the plaintiff was a strong, healthy, robust man at the time of the accident, forty years of age, earning six dollars per day, and by reason of the injury complained of suffered a fracture of the skull, concussion of the brain, a central dislocation of the hip, a distortion of the spine, impairment of vision and hearing, considerably diminished earning capacity, and had continually suffered great physical pain; the assessment of damages being left, by law, to the discretion of the jury, whose verdict will not be disturbed unless so excessive and outrageous, under the evidence, as to demonstrate that they permitted their passions and prejudices to mislead them into giving a verdict against the rules of law.

E. W. Sutton and W. L. Stanley ( Smith, Warren, Hemenway & Sutton and Holmes, Stanley & Olson on the brief) for plaintiff in error.

E. A. Douthitt ( Douthitt & Coke on the brief) for defendant in error.

ROBERTSON, C.J., WATSON AND QUARLES, JJ.

HON. W. J. ROBINSON, JUDGE.

OPINION OF THE COURT BY QUARLES, J.

At the conclusion of the evidence on behalf of the plaintiff (now defendant in error), at the first trial, the circuit court entered judgment of nonsuit, in favor of the defendant (now plaintiff in error), to review which, the plaintiff sued out a writ of error in this court, and the judgment of nonsuit was reversed. We will here refer to the former decision of this court (ante page 66) as showing the material facts. An examination of the record now before us shows that the evidence is substantially the same so far as the plaintiff's case is concerned, as at the former hearing. Upon the return of the case a new trial was had and a verdict for $13,000 damages rendered in behalf of the plaintiff; and, to review the judgment entered thereon, defendant has sued out a writ of error in this court. In the former decision this court held that the contention of the plaintiff that the negligence of the defendant in furnishing a cable which was burred and unsafe was the proximate cause of the injuries, which he sustained, should have been submitted to the jury, on the evidence, under proper instructions. The defendant has assigned a number of errors of law occurring during the progress of the cause, some of which have not been argued, some abandoned, and some of them relied upon for a reversal of the judgment now to be reviewed. The principal contention of the defendant now, is, that the court erred in refusing to give its request for an instructed verdict, basing this contention upon the ground that, under the evidence, the question as to the proximate cause of the injury was one of law to be decided by the court, and not a question for the jury. It will thus be seen that the principal question before us is the same, in a different form, as that before us at the former hearing.

After full consideration we are of the opinion that the former decision in this case is correct, under the evidence disclosed in the record, and under the authorities. We therefore adhere to the former decision, and hold that the question of proximate cause was properly submitted to the jury. It is contended, with much earnestness, on behalf of the defendant, that the defective cable described in the former decision, was not of itself, dangerous; that after it came off the pulleys, and the engine was stopped, it was inert, and incapable of injuring the plaintiff; that it did not injure the plaintiff, and was not the proximate cause of the injury, and, at best, it only furnished the occasion for the plaintiff going to replace the cable on the pulleys. If the cable came off the pulleys by reason of its worn condition, as some of the evidence tends to show, and in doing so had struck the plaintiff and injured him, it would follow that the use of the cable in such condition was negligence, and the proximate cause of such injury. But, it is the duty of the master to furnish suitable and safe appliances for his servants to conduct his business with, and this duty is not fulfilled by simply furnishing appliances that may be used, but which, owing to their defective condition, are liable to be misplaced and thereby necessarily subjecting the servant to extraordinary risks by replacing them. In other words, the assumption of the ordinary risks of an employment by the servant does not extend to those risks arising from defective machinery or appliances, where, as in the case at bar, the defects are known to the master, and, at the complaint of the servant, he has promised the servant to replace the defective appliance with one that is suitable. The jury were justified in finding from the evidence three facts which are material to the issues in the case, viz., (1) that owing to the burred condition of the cable, strands of wire protruding from it from one-sixteenth to one-quarter of an inch, it had a tendency to climb up on, and run off, the pulleys; and, therefore, was not suitable for the purpose for which it was necessarily used; (2) that the defendant promised the plaintiff to replace the cable with a new one, and failed to do so; and (3) that defendant's neglect to replace the defective cable with a new one, made it necessary for the plaintiff to leave his usual work and go upon the elevated track of the defendant (a height of about 25 feet) thereby incurring an extraordinary hazard which would not have existed if a suitable cable had been installed. The jury were also justified in finding that a man of ordinary care and prudence, under the circumstances, would naturally apprehend that the cable would come off the pulleys; and the foreman, Akina, being absent, under such circumstances plaintiff would go and attempt to replace it; that being on an elevated trestle, 25 feet above ground, injury to plaintiff would probably result.

We will notice the principal authorities cited by the defendant to sustain the contention that the defective cable was not the proximate cause of the injury sustained by the plaintiff, and that that question should have been decided by the court by instructing the jury to find for the defendant. In the case of Carter v. Lockey Piano Case Co., 177 Mass. 91, the court directed a verdict for the defendant upon the ground that the injury was caused by the negligence of a fellow servant of plaintiff while operating an elevator in failing to use a stopping cable or clamp, there being no negligence of the defendant in failing to supply suitable and safe appliances. In the case of Mo. Pac. Ry. Co. v. Columbia, 65 Kan. 390, the deceased had worked for the defendant seven years, the last five as fireman on one of its engines; during all that time the defendant had kept piled on its platform at Langley, where the accident occurred, a pile of grain doors, from eleven to fifteen in number, conspicuously placed from fifteen to twenty-two feet from the track, by which the deceased had passed about six hundred times; along its line the defendant, where there were grain elevators, kept piles of grain doors stored near such elevators, and at stations where there were no elevators (such as Langley) kept such doors piled at the station; the accident whereby deceased lost his life was caused by the grain doors being blown off the platform on to the track, by a violent storm, amounting to a gale; no similar accident had ever occurred before on defendant's road; that the accident would not have occurred but for such storm. These facts were found in a special verdict by the jury, being submitted to them. The jury also found that the wind storm was not the proximate cause of the accident, but the negligence of the defendant in piling the grain doors on an exposed platform was the proximate cause, and found a general verdict for the plaintiff. There was no evidence to show how long the doors had been on the track prior to the accident, or that any officer or agent of the defendant knew that the doors were on the track. On appeal the special verdict was treated as finding the material facts in favor of the defendant, and the court held that the conclusion of the jury as to the proximate cause of the accident was inconsistent with the facts found, holding the accident to have been caused by the act of God, one which no reasonably prudent man would have anticipated, set aside the...