Western Gas Const. Co. v. Danner

Decision Date02 October 1899
Docket Number515.
Citation97 F. 882
CourtU.S. Court of Appeals — Ninth Circuit

J. P Langhorne, for plaintiff in error.

Platt &amp Bayne and J. W. Goad, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

HAWLEY District Judge.

This is an action to recover damages for injuries received by the defendant in error (hereinafter designated as 'plaintiff') from the falling of a smokestack through the carelessness and negligence of the plaintiff in error (hereinafter designated as 'defendant') in erecting the same. The defendant's answer denied the allegations of the complaint, and affirmatively alleged that the injuries which plaintiff received were occasioned by his contributory negligence, 'by reason of his failure to exercise ordinary and reasonable care and prudence in regard to his personal safety.' The plaintiff, at the time of the accident, was engaged as an employe of the Colusa Gas Company in building a brick wall about 20 feet distant from the smokestack in question. The jury found a verdict in his favor for the sum of $2,500. There are seven assignments of error which will be noticed in the order of their presentation. Assignments 1 and 2 will be considered together.

1. It is claimed that the court erred in admitting in evidence two diagrams; one (b) showing the position of the smokestack, the position of the temporary guy ropes that were attached to it when it fell, and the position of the permanent guy ropes that were attached to it at the time the diagram was made. The other (c) represents the position of the plaintiff when he was struck by the falling stack, the position of the stack after its fall, and the building of which it was a part. These diagrams were made by one St. Maurice, a civil engineer, who testified that he was not present at the time the accident occurred, and did not know, of his own knowledge, how the guys of the smokestack were arranged at the time of the accident; that he had located the position of the guy ropes in part from the information he had received from other persons and in part from actual measurements. At this stage of the testimony the diagrams were offered in evidence. The grounds of the objections were that the diagrams were mere hearsay; that they were not made by the draftsman from his own knowledge, and that they were not the best evidence; and that there was no evidence tending to show that the diagrams were correct. It may be admitted that it would have been the better practice not to have admitted the diagrams in evidence until some witness or witnesses had testified that they were correct; but the order in which testimony shall be introduced is largely within the discretion of the court, and, as such testimony was given afterwards on that point, the error, if any, existing at the time of their admission, was cured by the subsequent testimony of other witnesses. The order in which proofs are introduced cannot, ordinarily, be subject to review on writ of error, and in no case should an appellate court interfere with the discretion of the trial judge, unless it clearly appears that there has been an abuse of such discretion to the prejudice of the party. It does not so appear in this case. St. Maurice testified that the green lines on (b) purport to represent the guy lines of the smokestack at the time it fell, as stated to him; that he took it from actual survey; that the green line running in a northwesterly direction to a point called 'walnut tree,' the one running in a southwesterly direction to a point called 'eucalyptus tree,' and one running in a southeasterly direction to a point called 'post in fence,' are the guy lines; that he obtained the information as to the location of these lines from the workmen who claimed to be there when the accident happened, viz. Kuhn, Clement, and Goad; that the black line running almost due north from the smokestack to a point called 'guy post' is one of the present guy lines holding the smokestack in position; so is the black line running in a southwesterly direction to a point called 'guy post,' and the black line running southeasterly to a point called 'guy post'; that the positions of these lines were obtained by actual measurement and survey; that the point to the right of the smokestack at a spot called 'gin pole' was located from information given by Kuhn; that the other lines on (b) are located from actual survey, and are as they now exist; that the diagram (c) represents the staging and correct position of Mr. Danner at the time he was building the west wall when the accident occurred; that this was located according to information given to him, principally by Mr. Danner. Kuhn testified that he assisted in erecting the smokestack and tying the guy lines; that he pointed out to St. Maurice, as near as he could, the spot on the ground where the gin pole was; that the guy line running north was tied to the third tree from the eastern end; that he pointed out to St. Maurice the tree which he identified as the one to which he tied the guy line; that to the west he tied the guy line to a eucalyptus tree; that he pointed out to Mr. St. Maurice the tree that the guy line was tied to; that the third guy was attached to a fence post in the eastern boundary fence; that he pointed it out to Mr. St. Maurice, and identified it from the marks of the old guy line. Clement testified that he fastened the guy lines, helped raise the gin pole, and guyed it, fastened the sling around the top of the gin pole, put the blocks on it ready for raising it, and helped raise the stack; that the guy line to the stack where it was first raised running towards the north was tied to a walnut tree, and that he helped tie it; that he pointed out this tree to Mr. St. Maurice; that the marks of the wire were around the tree; that he helped to raise the stack the second time, and it was raised on the same spot where it first stood; that he helped tie the original guy to the eucalyptus tree on the west, and pointed it out to Mr. St. Maurice as the particular tree, and that he was positive in his identification. The testimony as to whether or not the diagrams were correct was, upon some points, conflicting. The objections to the admission of the diagrams were properly overruled on the ground that, as clearly shown by the record, they were not admitted as evidence of any substantive or independent fact, or upon the ground that they were correct, but were admitted simply for the purpose of being used in illustrating the testimony of the witnesses. Shook v. Pate, 50 Ala. 91. The court, at the time of overruling the objections, said:

'It is not admitted as a truthful map, but simply as an illustration of the testimony of the witness. Whether or not it is a truthful map is a matter of proof. With that explanation, your objections are overruled, and the map will be received in evidence; but, of course, not as an absolutely truthful representation of the ground.'

The court, in its charge to the jury, said:

'I instruct you that the important matter here is not the number of guys so much as it is the manner in which they were placed. And there is this important question for you to determine in this case: The plaintiff has introduced a map here, certain green lines upon which are alleged to indicate the way in which those guys were temporarily placed. If the guys were placed as represented upon that map, it is evident to any eye, and is admitted by all parties, that they would not be a support to the smokestack. The defendant says that those guys were not so placed. That is one of the important questions for you to determine, as I have said,-- whether those guys were placed as represented by the plaintiff, or whether they were placed differently.'

Moreover, the material question of fact was whether the smokestack fell by reason of any negligence on the part of the defendant. The undisputed testimony shows that, if ordinary care had been exercised in erecting the smokestack, it could not have fallen without the guys breaking or the fastenings giving away. The guys did not break; the fastenings did not give way; there was no high wind, or any convulsion of nature, to cause it to fall, unless it was unskillfully, carelessly, or negligently erected; there was no dispute as to the direction in which the smokestack fell, or its position after it fell, or any controversy as to the position of plaintiff when it fell, or that in falling it struck the plaintiff.

In Le Beau v. Construction Co., 109 Mich. 302, 67 N.W. 339, the court said:

'A map was introduced in evidence, which plaintiff claims was not correct. There was proof, however, that it was approximately correct, and one witness testified it was accurate. Its admission was not error. Hoffman v. Harrington, 44 Mich. 184, 6 N.W. 225; Battishill v. Humphreys, 64 Mich. 494, 31 N.W. 894.'

In Concentrating co. v. Schmelling, 24 C.C.A. 564, 79 F. 263, 267, this court said:

'Another point made on behalf of the plaintiff in error is that the court, against the objection and exception of the plaintiff in error, admitted in evidence a diagram of the stope where the accident occurred, made by one Easton upon the representations of the witness Powers and others as to its appearance after the accident. Powers testified that it was a fair representation of the workings in the stope immediately after the accident, and the court admitted it, in connection with his testimony, only as his version of the workings, which the jury might consider for what it was worth. In this we see no error.'

In Clegg v. Railway Co. (Sup.) 37 N.Y.Supp. 130, the defendant objected to the admission of a diagram which plaintiff testified was a perfect diagram of the...

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