Purcell Mill & Elevator Co. v. Kirkland

47 S.W. 311, 2 Indian Terr. 169, 1898 Indian Terr. LEXIS 59

• Court: Court Of Appeals Of Indian Territory
• Decided: October 1, 1898
• Status: Published

Opinion

Clayton, J.

In this jurisdiction the statute governing appeals does not require that any assignments of error shall be filed. It does provide, however, that a motion for new trial must be filed, and passed on by the court below, and be brought up to this court by the bill of exceptions, and, when so brought up, it answers the purpose of an assignment of errors. In this case the motion for new trial is as follows: “ The defendant moves for a new trial, because —First. The verdict is not sustained by the evidence. Second. The verdict is contrary to law. Third. The court erred in overruling the demurrer to plaintiff’s second amended complaint. Fourth. The court erred in overruling defendant's motion to strike plaintiff’s second amended complaint from the files, because of the variance between that complaint and the former complaint. Fifth. The court erred in overruling defendant’s motion for continuance, after plaintiff’s cause of action had been changed by the filing of tbe second amended complaint. Sixth. The court erred in overruling defendant’s motion to strike out the inconsistent paragraphs in plaintiff’s said amended complaint. Seventh. The court erred in overruling defendant’s motion for a continuance after the plaintiff had announced roady for trial, and defendant had discovered the loss of depositions taken in the case. Eighth. The court erred in admitting testimony over the objection of defendant, as shown by the bill of exceptions. Ninth. The court erred in refusing instruction No. 6, asked by the defendant. Tenth. Because said verdict is excessive and shows prejudice on the part of the jury. ”

We will leave the first, second, and tenth of the errors above assigned to be last considered, and dispose of the others in the order stated in the motion for a new trial; and, inasmuch as the demurrer mentioned in the third assignment attacked the second amended complaint on the same grounds as the motion mentioned in the fourth and fifth, and the motion for continuance in the sixth, assignments, we will consider them together.

It is argued that, because the second amended com plaint alleged that the plaintiff’s employment was special,— that he was to perform a single job, — and whereas the first amended complaint alleged that his employment was general (thus invoking the law of master and servant,)' this constitutes such a variance from the preceding pleading as the law will not permit by amendment. While the law of pleading will not allow an amendment which has the effect of changing the cause of action from that stated in the original complaint, we know of no law, nor has any been cited, which prohibits a change, in the amended complaint, of the statement of facts relating to the same cause of action. Indeed, this is often the very object of thé amendment, and, under our statute, is allowed even during the trial, if it does not work a surprise, and then it would only be a ground for continuance; and as this amendment was filed eight days before the trial', as shown by the record, and in this particular only changed the preceding amended complaint as to the facts stated therein, to wit, that the plaintiff, instead of having been a general employe around the mill, as first stated, was only employed to do specially the labor necessary to the performance of a single job, we cannot agree with the learned counsel that this is prohibited by the law, or that it would work such a surprise as would entitle them to a continuance, which, if not allowed, would constitute an abuse of the discretion allowed the court in passing on motions for continuance.

Pleading. Arnendm~nt.

The seventh assignment is that the court erred in overruling defendant’s second motion for continuance, which set up the loss of the depositions of his witnesses theretofore filed in the case. It must be conceded that, if the facts which the motion shows the witnesses had testified to in the depositions were true, they were material. But the affidavit of Mr. Coffee denies that the depositions contained the statements claimed by the motion; but, conceding that they were as stated, was there any diligence shown by defendant in procuring this testimony after knowledge of the loss of the depositions? If the written motion, which, by agreement, was written and filed after the trial, contains the real motion as verbally made, there might be some grounds for the claim that diligence was shown. Even then, when it is remembered that, a year before, they had been destroyed by fire in the burning of the court house, and that their loss had not been discovered until the day the case was called for trial, it seems to us a remarkable degree of diligence is not shown. But, be this as it may, the affidavit of Mr. Coffee, supported by the recollection, of the trial judge, is to the effect that popusel, in the real motion for a continuance, admitted tha t they had theretofore been advised of the loss of the depositions, and that one of the parties was then living within the jurisdiction of the court, and could be reached by subpoena. It is not for us to determine which version of the matter is correct. The court in whose presence the verbal motion was made has passed upon it, and it is conclusive as far as this court is concerned. The court found that diligence had not been used, and there was evidence to support its findings, and therefore the refusal to grant the continuance was not an abuse of its discretion. A motion for continuance is in the sound discretion of the court, and,. unless that discretion has been abused, a refusal to grant the motion is not reversible error. Burriss vs Wise, 2 Ark. 33; Stillwell vs Badgett, 22 Ark. 164; McDonald vs Smith, 21 Ark. 460; Harsh vs Hanauer, 15 Ark. 252; Hunter vs Gaines, 19 Ark. 92; Rector vs Gaines, Id. 70; Ware vs Kelly, 22 Ark. 441. Under the circumstances of this case, we cannot see that the discretion resting in the court to grant • or overrule the motion for a continuance was abused,

Continuance. Discretion of court. Exceptions. Too indefinite

■ The eighth assignment does not point out what testimony was objected to, and therefore is too general to be considered. It points to nothing, and is too indefinite. Edmonds vs State, 34 Ark. 720. This assignment is not urged by counsel.

The ninth assignment is that the court erred in refusing to give instruction No. 6 asked for by the defendant. The general instructions of the court fully and fairly defined “contributory negligence,” as applied to this case. The seventh and ninth instructions of the court, as given, are as follows: “(7) The duty was on the plaintiff to exercise ordinary care and diligence in his efforts to discover defects in the wire rope, and, if he failed to exercise such ordinary care and diligence, lie thereby contributed, by his own negligence, to the injury which he sustained, and he would not be entitled to recover. ” “(9) When the plaintiff undertook the work of painting the smokestack by virtue of the contract, he subjected himself to the ordinary peril incident to such services; and, if he undertook the work with notice and knowledge of the danger, he is deemed to have accepted the services and the danger too. ” We find no error in refusing the instruction asked for.

verdict. o0n-flict of evi-aence.

The first assignment is that “the verdict is not sustained by the evidence.” The rule governing this court upon this question is that the court will not reverse the decision of the court below, refusing a new trial, when the only ground presented is the mere weight of evidence, unless there is a total want of evidence upon some point absolutely necessary to a recovery, or unless the verdict is clearly and palpably contrary to the weight of evidence. When there is . . . ...... a conflict of evidence, the jury being the exclusive judges of facts, their verdict will not be disturbed. Drennen vs Brown, 10 Ark. 138; Sparks vs Beaver, 11 Ark. 630; Bank vs Wooddy, 10 Ark. 638; Gatlin vs Wilcox, 26 Ark. 309; Oliver vs State, 34 Ark. 632.

It is claimed by the plaintiff that the conversation had between him and Mr. Trudgeon, the manager of defendant’s mill, just before the accident, amounted to a promise to repair on the part of the defendant, and that, relying on the promise, the plaintiff had the right to continue the work with the defective rope. But it must be remembered that the work was but a mere job that would take but a day or two to complete; and, if the language could be construed to amount to a promise, it was not a promise to simply repair, but to supply an entirely new rope. If the understanding was that a new rope was to be supplied, then this was a condemnation of the old one, which would relieve the defendant from any further inspection of it, because it was no longer to be used. And this must have been understood by the one as well as the other; and if, under these circumstances,- the plaintiff, without giving the defendant time to make his promise good, and without any further instructions from him, notwithstanding the understanding, should see fit to take the chance's and use the old one, it would clearly be at his own risk. Under such circumstances, the defendant would be without fault, and this would be the end of the case.

But did the aforesaid conversation amount to a promise to repair or to supply a new rope? We think not. The conversation commenced by plaintiff telling Mr. Trudge-on that he came to see him about the rope, — to get his opinion of it; that' it was a little rusty, — not rusted in two anywhere, but that a few strands of wire had been broken and a few were cut; looked as if they had been cut on something, but it seemed to be good. Mr. Trudgeon replied that that was a funny idea. The plaintiff responded that he did not know that it was, or something to that amount. Mr. Trudg-on then said: “The rope is all right; that it would not rust; that it was galvanized steel wire; it would not rust.” Plaintiff then suggested that a new rope be gotten, and asked how long it would take to get one, to which Mr. Trudgeon replied, “Not a great while” The-plaintiff then said, “Why not get one?” The reply was, “That might do, ” and as the plaintiff turned to leave he was told that the rope had been insured for five years. And this was the whole conversation. We fail to find any element of promise in it. The whole purpose of Mr. Trudgeon seems to have been to impress on the mind of the plaintiff the impossibility of the rope being defective on account of rust. He made light of the suggestion that it was defective; said that it was a funny idea; “that the rope was all right”; that it was made of galvanized steel wire, and would notrust. ” When a new one was suggested, he said, “That might do,” but it had been insured for five years, and both knew that it had been in use but. one. The plaintiff himself had said to him that, notwithstanding the few defects, he found that the rope seemed to be good. The argument made by Mr. Trudgeon seems to have satisfied the mind of the plaintiff, and to have dispelled all of his misgivings; for he says that he went back from the office where the conversation was had, to the smokestack, and concluded to make the ascension.

“Mere suspicions and surmises or belief that the defects will be remedied do not take the place of a promise to remedy them. There must be something emanating from the employer to induce a belief that the defects will be remedied.” 1 Bailey, Mast. Liab. 3076. The after-conduct of the plaintiff is conclusive evidence that he did not believe a new rope was to be supplied.

.Taking the view that the language used did not amount to a promise, either express or implied, we are called upon to determine whether the evidence of defendant’s negligence in not providing a rope sufficient for the purpose, and in not properly inspecting the one used, was sufficient; and, if so, was there any evidence of contributory negligence on the part of the plaintiff? and, if so, was it clearly and palpably against the weight of the evidence on this point as to show that the court committed error in refusing to grant the motion for anew trial? So far as the defendant is concerned, we think it obvious that he had not performed his full duty. The wire rope had been suspended from the smokestack, subjected to the influences of the weather for one year. It may have been insured for five, but he had been informed by the plaintiff that it had been examined, and that there were defective places in it, and, notwithstanding his own views were that a galvanized steel rope would notrust, he had been informed that this particular one did. In the case of Railway Co. vs Harper, 44 Ark. 528, the court say “that, if the company omitted any test of soundness of the boiler that ought to have been made, it was guilty of negligence, and it was not for the court to take the case from the jury.” In this case the ordinary and simple test of applying the additional weight had not been made; but, instead of inspecting it himself or having it done, he satisfied himself by arguing away the fears of the man who was to perform the perilous duty of making the ascension. Had he made the inspection, and applied the common test in such cases of suspending to the rope a weight many times heavier than that to be used in the work, the defect would probably have been found. He cannot relieve himself of the responsibility upon the ground that the defect was latent, and that an inspection such as should have been made would not have discovered it. The probabilities are that it would, and, not having applied the test, he will not now, after the accident and a verdict of the jury against him, be allowed to say that it would not. The rope held the plaintiff, who had made two ascensions on it, but when the additional weight of the rope and tackle was added it broke. A latent defect may excuse the employe for not having discovered it by the use of such ordinary care as the law requires on his part, but they are the very kind of defects which the employer is required to find if, by proper inspection and by the use of such care and diligence as the law requires of him, they can be found; and he can only escape responsibility on this ground when it is shown that a proper inspection would not have discovered them. And in this case this question was fairly submitted to the jury by the charge of the court in its eighth instruction, which is as follows: “If you should conclude from the evidence that the Mill & Elevator Company contracted with the plaintiff to furnish safe and reliable appliances for the work, and that it did furnish the appliances, and was ignorant of the defects in the. same, and could not by reasonable diligence ascertain the defects, then the defendant would not be liable.” We think there was evidence supporting the verdict on this point, and therefore cannot interfere with it.

Appliance, Wliat is?

Was the plaintiff guilty of contributory negligence? He testified that he was not familiar with wire ropes; and we do not think that a rope of this description, used as this was, was an appliance of such simple construction and of such common use as that the common employe, not in the habit of using it, shall be considered as capable of knowing and understanding its mechanism, and of observing and discovering defects that may exist in it, as to take it out of the rule of a master’s personal duty. In the case of Telander vs Sunlin, 44 Fed. 564, a rope connected with a tackle block was held to be such an appliance as came within the rule of a master’s personal duty. In Lund vs Hersey 41 Fed. 202, a rope which a foreman selected from a quantity on hand for use in hauling a barge from the water was held to be within the term “appliances.” See, also, Baker vs Railroad Co., 95 Pa. St. 211. Of course, much will depend on the. purposes for which it is used. If it constitutes a part of a structure, as of machinery, which is most vital to the safety of the workman, then, however simple its construction, the personal duty of the master to make it strong and safe, and keep it so, is obvious. The very purpose for which this rope was used made it an “appliance,” within the rule.

The proof shows that the defect in the rope at the place where it broke consisted of the inside wires having been destroyed by rust. The outside strands were bright, and had all of the appearance of soundness. The plaintiff, and those who were with him, had made a pretty thorough examination of it, but failed to discover this defect. They found one place where a part of the rope had been lying near the escape valve of the engine that was so badly rusted that they cut it off and threw it away. They found other places where some rust appeared.on the outside, but, upon full examination, decided that this did not materially lessen its strength.. With their knives they opened the strands in places, and always found the inside bright and sound. The evidence does not show, however that they attached any weights to it to test its strength in that way. But still they discovered enough to excite the fears of the plaintiff. He became at least suspicious of its soundness. What was his duty under these circumstances? It may be said that he should have applied the other tests. But it must be remembered that the actual defect was latent, and the test, as far as made, showed no great defects, and that he did not choose to take the risk without informing his employer of the condition of the appliances. But he had two other courses open to him — he might quit the work, or he might report the condition of the appliances to his employer. The actual defect not being obvious, the plaintiff chose the latter course. It became then the duty of the employer to inspect the appliances, and learn its condition himself. Or, if he preferred to rely on his own judgment or knowledge, he might have taken upon himself the responsibility of assuring the employee of its soundness and sufficiency; in which latter case; under the circumstances of this case, the employe might proceed with the work; and if he did so relying on the assurances which he had received, and was afterwards injured because of these defects,, the fault was the employer’s, and the employe would be guilty of no negligence — he would have done his full duty under the law. Bailey, Mast. Liab. 898 et seq.; 8 Elliott, R. R. 2072/ 2073.

Master and servant. Duty to inspect,

The questions as to whether the language used by defendant, as above set out, was such an assurance, and as to whether the plaintiff really relied upon it when he proceeded with the work, were both fairly submitted to the jury by the fifth instruction of the court, which is as follows: “If, on the other hand, you should conclude from the testimony that "the Mill & Elevator Co. bound itself to furnish the machinery and appliances necessary to enable the plaintiff to carry on the work on a swinging scaffold, and that they did furnish such necessary appliances, and represented them to he safe and sound, and that they could be safely used in the work, and that the plaintiff relied upon the representations of the defendant upon that subject, and was unable to discover such defects as would make them unsafe, it would be your duty to find for the plaintiff. ” We cannot say, as against the verdict of the jury, that it was the duty of the plaintiff, under the circumstances, to have made further examination before proceeding with the work, or in doing so he did it at his own peril. He had gone far enough to discover that there were no apparent defects that were serious except at the place where the rope was exposed to the constant dampness caused by the escaping steam, and he had removed that. The actual defect was not visible. The rope had been insured for five years, and had been used but one. He had been told by his employer that it was all right, and that the material of which it was made was galvanized steel, not subject to rust. Aside from the place where the steam had caused it to rust, which had been removed, the defects were slight and immaterial. The inside, wherever it had been examined, was bright and sound. He had taken the caution of submitting the matter to his employer, who virtually adopted his inspection, and deemed it sufficient. These - facts were all before the jury, and their verdict is conclusive on us.

Verdict conclusiveness.

But, while the plaintiff was seriously injured, taking into consideration his age-he was 52 years old-and his nec-cessary inability to earn full wages, and all of the circumstances of the case, we think the verdict of the jury excessive. If the plaintiff will remit the amount of $7,500 within 15 days from this date, allowing the judgment to stand for the sum of $5,000, let the judgment be affirmed; otherwise let it be reversed and remanded.

Springer, C. J. and Townsend, J., concur.