Huber v. Jackson & Sharp Co.

15 Del. 374

• Court: Superior Court of Delaware
• Decided: February 15, 1895
• Status: Published

Opinions

Lore, C. J.

The witness can state whatever he saw of the

effects of it.

Bird, for the plaintiff asked Albert S. Deale, a witness for the plaintiff: Having seen them at work that day, state what effect as to safety or otherwise the shaking of the floor had on the men working at that machine ?

An objection was overruled.

Lobe, C. J.,

directed the witness to confine his answer to what he knows and has seen.

The witness replied: “Well, the effect was dangerous.”

Higgins, for the defendant, moved to strike out the answer, which motion was denied.

Charles M. Russell, a witness for the plaintiff, was asked on his direct examination: What were Spence’s duties in that relation as the regular millwright of the place, what did you see him doing when you were there ?

Higgins, for the defendant, objected that it was irregular.

Bird, for the plaintiff. We propose now to lay the ground for showing a promise on the part of Spence, or it not a promise, a complaint to him and what he said; also, by this witness, that one of Spence’s duties related particularly to the flooring of that mill and that he repaired it constantly.

Higgins, for the defendant. It is an attempt to prove by this witness, who was only in the cabinet shop, what is the division of duties or authority that goes to make up the position of a man in the mill who is alleged to have been, in the.language of the law, a vice principal. There should be shown antecedently some ground for the knowledge of the witness.

Lobe, C. J.

The objection is overruled; actual knowledge of the fact inquired about may be stated, with the right to the defendant to cross-examine as to the witness’ means of knowledge.

Bird, (resuming) asked the same witness: Did you ever have a conversation with Mr. Bennett in relation to the condition of the second floor?

The Witness: Yes, sir.

Higgins objected and contended that conversation with Mr. Spence could not bind the company, as he had not been shown to be a vice principal, but only did certain repairs around the mill. Bird, on the other hand, contended that he was the general millwright of the place, that his attention was called to it and he now desired to show what Mr. Bennett said after having his attention called to it.

Lore, C. J,:

The witness was asked to state as a fact what is the position a certain man occupies, and he said he was the head millwright, whose duty it was to make repairs. Now occupying the position of head millwright, whose duty it was to see that the floor was kept in good order, complaints made to him about this floor, we think are admissible. The defendant can show there was no such authority, if he can. Certainly complaints to that man, if the man occupied that position, about the floor, we think are admissible.

Bird, (continuing). When was that conversation (with John Bennett) to the best of your knowledge ?

The question was objected to by Bates, for the defendant, on "the ground that it had not been shown that Mr. Bennett was a vice principal and that conversations with him were irrelevant.

Lore, C. J.:

There are several ways of proving authority. One is the actual exercise of that authority continuously and recognized by the person. Another is by proof of letter of attorney or something of that kind. But there has been in this case proof that this party exercised that authority or agency.

Albert M. King, a witness for the defendant, being under direct examination was asked by Bates, for the defendant: Has there been any change in the condition of the shafting ?

The question was objected to as irrelevant.

Bates, in support of the relevancy of the question, stated among other things that it was in answer to plaintiff’s testimony on the point.

In a suit for damages alleged to have been incurred in an unsafe place the condition of the place at the time of the accident was the test, and all alterations made subsequently are not involved in the issue and are therefore irrelevant. Eespecting the alleged irrelevant testimony on the point which had been adduced by the plaintiff, if objection' had been made the testimony would not have been admitted. The difficulty in the mind of the Court is whether proof can subsequently be adduced in relation to irrelevant matter which had gone in without objection.

Bates, for the defendant, then put this question : In the condition in which those posts were at the time of the accident, as you have described, would it have been possible under the conditions existing on that floor, for the floor to rise up above the posts after the floor had been fixed as you described ?

The question was objected to by counsel for plaintiff and the objection was sustained.

Bates, for the defendant, asked John Bennett, a witness for the defendant, on direct examination : Have the floor and its supports remained since that time in the same condition as they were-at the time of Huber’s accident.

Counsel for plaintiff objected to the question as irrelevant, also-to the admission of any expert testimony which may be based upon it, as to the present condition of the building or machinery as-showing what their condition was at the time of the accident.

Counsel for defendant insisted upon the propriety of the question, and of the proof sought to be adduced, after a lengthy discussion, the following decision sustaining the objection, also dissenting opinion of the Chief Justice, were delivered.

Cullen, J.

(announcing the opinion of the majority of the Court:) The question that has been presented for the consideration of the Court is a very important, and I believe a new one, in one sense of the word; but the majority of the Court think it is not taken out of the general principles of law that govern cases of this character.

The issue in this case is as to whether or not the place was a reasonably safe place on the twenty-fifth of February, 1893. Under the decisions relative to which the law is not denied, the question is whether the same principle does not apply to the case where an injury may happen from a machine and afterwards an improvement be put upon the machine. That cannot be given in evidence against the party, as proving that it was not reasonably safe before; in other words, because they had not the best improved machinery, provided that which they had is reasonably safe, they are not guilty of negligence.

The question presented here for the Court in relation to this matter is what is the condition of the building now with respect to the condition on the twenty-fifth of February, 1893.

We don’t think that testimony is in issue, because the issue as to the condition of the building now in no wise affects the matter.

If it was a machine, though the machine was worn out by use, yet there is a principle by which that machine is operated which does not change at all. But here, after the lapse of two years, is a building that has necessarily been subject to changes by reason of wear and tear, and it could not necessarily of itself be the same building that it was at that time.

But, independent of that, the issue is as to what was the condition of the building at that time. You present as connected with that matter another issue, and that is as to whether this building is now in the condition it was at that time. What has that to do with the issue in this case? As to whether the condition is better or whether it is worse has nothing to do with this case, because you must confine yourselves in all cases to the issue involved in the particular case.

Therefore we think this is not relevant testimony.

Marvel, J., concurred.