Wyoming Coal Mining Company v. Stanko
| Decision Date | 03 November 1913 |
| Docket Number | 727 |
| Parties | WYOMING COAL MINING COMPANY v. STANKO |
| Court | Wyoming Supreme Court |
Rehearing Denied February 3, 1914, Reported at: 22 Wyo. 110 at 127.
ERROR to the District Court, Sheridan County; HON. CARROLL H PARMELEE, Judge.
The action was brought by Paul Stanko against the Wyoming Coal Mining Company to recover damages for a personal injury alleged to have been received by the plaintiff while in the employ of the defendant in its coal mine, and through its negligence. A general verdict was returned in favor of the plaintiff for $ 3200, and judgment was rendered against the company upon the verdict. In connection with the general verdict the jury returned answers to special interrogatories as follows: " . . . . At the close of the evidence for plaintiff the defendant moved for a directed verdict, which was denied, and on the return of the verdict and special findings the defendant moved for judgment in its favor, which was also denied. The defendant brought error. The other material facts are stated in the opinion.
Reversed.
Lonabaugh & Wenzell, for plaintiff in error.
The construction placed by the plaintiff, defendant and the court, until the jury were instructed, upon the paragraph of the petition alleging negligence was that the defendant company was charged only with negligence in failing to exercise due care and diligence in the inspection and repair of its coal cars. And that seems to be the correct construction of the allegation. The petition cannot be properly construed as charging a failure in the first instance to furnish and provide the plaintiff with safe machinery and appliances. Therefore, when the court by its instructions gave the case the aspect of presenting two charges of negligence, it was a surprise to the defendant and the action of the court in that respect was reversible error. The charge of negligence included in the instruction with reference to the furnishing of safe machinery and appliances in the first place was not met or considered by the defendant, nor was any evidence offered as to that matter by either the plaintiff or the defendant. Again, the instruction thus complained of is subject to the objection that it demands a greater degree of diligence on the part of the company than the law requires. It makes the company an insurer of the safety of its employes. (1 White on Pers. Inj on Rds. Sec. 13). It is reversible error to instruct on an erroneous theory, different from that on which the case was tried, and on issues upon which there was no evidence. (Morrow v. Ry. Co. 67 N.W. 1002; Cooper v. Water Co., 116 P. 298; Obenchain v. Town of Roff, 116 P. 782; So. Ry. Co. v. Wiley, 71 S.E. 11; Creteau v. Ry. Co., 129 N.W. 855; Montgomery v. Ry. Co. 114 P. 659; Frick-Reid Supply Co. v. Aggers, 114 P. 622; Williams v. So. Pac. R. Co., 110 Cal. 457, 42 P. 974; Jackson v. Ackroyd, 15 Colo. 583; Kenna v. Am. Box Toe Co., 128 N.W. 858; Cornell v. Haight, 127 N.W. 901; Yager v. Ry. Co. 123 N.W. 974; Whitsett v. Ry. Co., 25 N.W. 107).
It was error to refuse each of the instructions requested by the defendant as the same appear in the bill of exceptions for the reason that the defendant was entitled to such instructions on the theory on which the case was tried. (Coal Co. v. Estievenard, (Ohio) 40 N.E. 725). The motion for a directed verdict in favor of the defendant should have been granted. Also the motion for judgment non obstante veredicto on the same theory, viz: that the action was one based upon defective machinery, caused by ordinary wear, and before the plaintiff could recover it was necessary for him to show that the defective condition had existed long enough before the accident that the company could have had actual or constructive knowledge thereof and time to repair the defect. Special findings of fact when inconsistent with a general verdict control the latter and the court must give judgment accordingly. (Wyo. Comp. Stat. 1910, Secs. 4510, 4511, 4512). This court has held that a general finding is controlled by special findings. (Parker v. Meadows, 122 P. 586). The answer of "no evidence" to the sixth and seventh interrogatories includes negligence on the part of the defendant, for it is elementary that knowledge of the defective condition of the machinery or appliance causing the injury must be brought home to the defendant by proper proof before any liability attaches, though the knowledge may be either actual or constructive. (Patten v. Ill. Cent. Ry. Co., 179 F. 530; Ry. Co. v. Wilfong, 90 N.E. 307; Atchison &c. Ry. Co. v. Taylor (Kan.) 57 P. 973; Arcade File Works v. Juteau, 40 N.E. 818; Mo. Pac. Ry. Co. v. Dorr, (Kan.) 85 P. 533; Beech v. Ry Co., 116 P. 213; Pullman Co. v. Finley, 125 P. 385). The following cases sustain the general rule that want of notice of the defective condition of the machinery is fatal to plaintiff's cause of action. Pittsburg Ry. Co. v. Adams, 5 N.E. 187; Robinson v. Sylvester Tower., (Mass.) 90 N.E. 413; Kirby v. Montgomery Bros., (N. Y.) 90 N.E. 53; Defrates v. Cent. U. T. Co., (Ill.) 90 N.E. 719; Henson v. Lehigh V. R. Co., (N. Y.) 87 N.E. 85; St. Louis &c. R. Co. v. Harper, 44 Ark. 524; Boxle v. Mfg. Co., (Ga.) 40 S.E. 730; Chgo. &c. R. Co. v. Platte, 89 Ill. 141; R. R. Co. v. Wagner, (Kan.) 7 P. 204; Coal & M. Co. v. Britton (Kan.) 45 P. 100; Skellenger v. R. R. Co., (Ia.) 14 N.W. 152; Girard v. Griswold, (Mass.) 58 N.E. 179; Murphy v. R. R. Co. (Minn.) 71 N.W. 662; Hollenbeck v. Mo. Pac. R. Co. (Mo.) 38 S.W. 723; Essex &c. Co. v. Erie R. Co. 49 Barb. 324; Bauschka v. West. C. & C. Co., 129 S.W. 1095; Wadell v. Simonson, (Pa.) 4 A. 725; Baker v. R. Co., 40 Am. Rep. 634; Mixter v. Coal Co., (Pa.) 25 A. 587; R. R. Co. v. Hughes, (Pa.) 13 A. 286; West v. Town Co., (N. C.) 69 S.E. 687; Mfg. Co. v. Racine, (Ind.) 88 N.E. 529; Brase v. Chicago U. T. Co., (Ill.) 142 Ill.App. 117; McGinley v. Lehigh C. & M. Co., (Pa.) 73 A. 532; Washington &c. Co. v. Taylor (Va.) 64 S.E. 975; Reed v. R. R. Co., 167 F. 16; Bundy v. Lumber Co., (Cal.) 87 P. 622; Alves v. R. R. Co., 65 A. 261; Solts v. S.W. Cotton Oil Co., 115 P. 776).
By the answers to the third and fifth interrogatories also the jury acquitted the defendant of any negligence. . There is no liability for failure to inspect unless it is shown that inspection would have discovered the defect. (Roden v. Daniel, 132 S.W. 23). Where the undisputed evidence shows that the machinery in question was the kind in general use and reasonably safe, if prudently used, there is no liability. (Coal Co. v. Hayes, (Pa.) 18 A. 387). The doctrine of res ipsa loquitur does not apply to injuries to servants in the employ of their masters. (Patten v. T. & P. Ry. Co., 21 S.Ct. 275).
Metz & Sackett, for defendant in error.
The petition charges the defendant with negligence: 1. In furnishing a dangerous, defective and unsafe appliance. 2. In not inspecting its appliances. 3. In not repairing its appliances. Its allegations are sufficient to charge negligence in the furnishing of an originally defective unsafe, and dangerous appliance, and to permit the introduction of evidence in support thereof. (Guthridge v. Mo. Pac. Ry. Co., 94 Mo. 468, 7 S.W. 476). The evidence is sufficient to sustain the verdict and the judgment on the ground that the defendant knowingly and negligently furnished defective, unsafe and dangerous appliances. The jury found that the plaintiff did not have equal knowledge of the condition of the brake with the company; that he could not by the exercise of ordinary care have ascertained that the brake was defective and unsafe; and that the company never instructed him to inspect the brakes on the cars used by him and to report them for repair when found defective. It follows that by the general verdict as well as the special findings the plaintiff was entitled to depend upon the brake standing the usual method of operating it; that the company knowingly sent defective cars into the mine for plaintiff's use; that the brake was...
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