HANFORD, District Judge
(after stating the facts as above). The motion for a new trial specifies a number of grounds, hui I deem it necessary to only refer to the following, which were especially urged in the argument: First. The plaintiff- was surprised by the testimony given by Dr. Kibbe, a witness called by the defendant. Second. Error in the ) uiing of the court excluding evidence offered by the plaintiff in rebuttal. Third. Error in the instructions given by the court to the jury. Fourth. The plaintiff was prejudiced by comments made by the court upon Uie evidence when giving instructions to the jury.
In support of the plaintiff’s claim that he was taken by surprise upon the trial, his attorneys have filed affidavits charging that Dr. Kibbe, a physician and specialist in the treatment of injuries and diseases of the eye, who was called upon by the plaintiff for treatment a few clays after the injury, had given assurances to the affiants a short time previous to the trial that, if called as a witness in the case, he would testify that lie examined the plaintiff- five or seven days after the accident. and found him to be at that time totally blind; that the injury was the result of a burn; that the plaintiff was then suffering from a burn; that the burn was a gas explosion; that there was no fracture or break of (he skin to indicate a shot, and that a shot would have bruised and broken the skin and flesh; and that the affiants depended upon Dr. Kibbe to prove that the injury to plaintiff was caused by 'burning gas, and not by any other explosion or shot, and that they had no ground for expecting other or different testimony from Dr. Kibbe until after the physical examination of the plaintiff by Dr. Kibbe and other doctors during the progress of the trial. In the argument one of the plaintiff’s attorneys also made the statement that, if lie had not depended upon the assurance received from Dr. Kibbe previous to the trial, be would not have consented to the examination of the plaintiff by the doctors during the trial. It is quite probable that the plaintiff’s attorneys were surprised by the testimony of Dr. Kibbe and others who examined the plaintiff during the trial, but mere surprise is not: a legal- ground for setting aside the verdict of a jury, unless the party alleging surprise shows that its effect was to deprive him of a fair trial. In this case the plaintiff was not entrapped; he voluntarily consented to submit himself to a physical examination, and the examination was made by other physicians of his own selection as well as by Dr. Kibbe. [342]*342He was apprised of the result of the examination in its effect upon the-opinions of the different doctors before they were called as witnesses, and in consequence of that information he did not make Dr. Kibbe his witness. Upon a new trial the examination which was made may be shown by the testimony of the witnesses 'to the fact, and the opinions-of the same witnesses, based thereon, may be given in evidence. Facts-which have come to the knowledge of witnesses cannot be suppressed, and, presumably, if the testimony of the doctors was prejudicial to the-plaintiff upon the trial which has taken place, it will be equally prejudicial upon a second trial.
In his case in chief the plaintiff offered evidence in support of the allegations of his complaint as to the position and duty of John Lowrey, whom the complaint charges with negligence causing the injury. The defendant introduced evidence tending to prove that one of the written and permanent rules governing the operation of its coal mine in which the injury occurred forbids any person except the general underground superintendent to change, or in any way interfere with, the brattice or other arrangements for conducting air into the different crosscuts and chutes in the mine, and also offered testimony tending to prove that for the safety of the miners in different parts of the mine it is necessary that the arrangements for conducting and distributing air through the mine should be under the control of a single person, who must necessarily have knowledge of the requirements of the miners working in the different crosscuts and chutes; and that at the time cf. the injury to the plaintiff the only person who had a right to close an opening, or make any alteration in the brattice, was Mr. Evan Lewis, whose position was that of general underground boss or superintendent. The plaintiff, in rebuttal, called witnesses who have worked as miners in the mine where this injury occurred, and interrogated them as to the duty of a fire boss in said mine, and, upon an objection to these interrogatories being sustained by the court on the ground that the testimony called for was not proper in rebuttal, the plaintiff’s attorneys were permitted to make an offer of evidence which they -wished to introduce, and thereupon Mr. Teats, attorney for the plaintiff, made the offer as follows: “We offer to prove by this witness that it was the duty of John Lowrey, the fire boss, to arrange the canvas gate in the big-crosscut when requested by Mr. Sommers, to give Mr. Sommers more air; that that was one of the duties of the fire boss of this mine;” and, an objection being made to the introduction of the testimony as offered, the court sustained the objection on the ground that the same was not proper in rebuttal. In the argument of this inotion it is insisted that the plaintiff had the right in rebuttal to prove that the company’s rule-forbidding any person other than the general underground superintendent to interfere with the air passages was, in effect, annulled by the general practice of disregarding it. The manner in which the-different officers and employes of the defendant actually operated this-mine might show what were the duties assigned to them by the'ir employer, but duties and practices are not necessarily identical, and the-attorney should have informed the court at the time that he proposed to prove what the actual practice was, if, in fact, that purpose was in his-mind. His exception will not avail to give him the benefit of an [343]*343afterthought. It is useless to discuss the question as to the right of the plaintiff to prove in rebuttal that there had been habitual disregard of one of the standing rules governing the operation of the mine, because no evidence tending to prove any such practice was, in fact, cf. fered or suggested upon the trial; and for that reason alone I hold that the plaintiff’s contention on this point is without merit.
The part of the instructions to which exceptions were noted was given in an endeavor by the court to particularly define the issues, and to point out to the jury the disputed questions, which must necessarily be decided by the jury; and the whole matter as to what the evidence proved, as to the manner in which the accident occurred, and as to the plaintiff’s conduct, and whether the plaintiff was, by reason of any act or omission of his own, guilty of negligence which contributed to cause the injury to himself, was fairly submitted to the jury for their decision. The court, in the discharge of its duties in the case, could do no kiss; and, after considering again the charge given to the jury as a whole, as well as the particular part to which exception was taken, I am unable to find that the plaintiff has ground to complain of error or unfairness in the manner in which the case was submitted to the jury.
Free access — add to your briefcase to read the full text and ask questions with AI
HANFORD, District Judge
(after stating the facts as above). The motion for a new trial specifies a number of grounds, hui I deem it necessary to only refer to the following, which were especially urged in the argument: First. The plaintiff- was surprised by the testimony given by Dr. Kibbe, a witness called by the defendant. Second. Error in the ) uiing of the court excluding evidence offered by the plaintiff in rebuttal. Third. Error in the instructions given by the court to the jury. Fourth. The plaintiff was prejudiced by comments made by the court upon Uie evidence when giving instructions to the jury.
In support of the plaintiff’s claim that he was taken by surprise upon the trial, his attorneys have filed affidavits charging that Dr. Kibbe, a physician and specialist in the treatment of injuries and diseases of the eye, who was called upon by the plaintiff for treatment a few clays after the injury, had given assurances to the affiants a short time previous to the trial that, if called as a witness in the case, he would testify that lie examined the plaintiff- five or seven days after the accident. and found him to be at that time totally blind; that the injury was the result of a burn; that the plaintiff was then suffering from a burn; that the burn was a gas explosion; that there was no fracture or break of (he skin to indicate a shot, and that a shot would have bruised and broken the skin and flesh; and that the affiants depended upon Dr. Kibbe to prove that the injury to plaintiff was caused by 'burning gas, and not by any other explosion or shot, and that they had no ground for expecting other or different testimony from Dr. Kibbe until after the physical examination of the plaintiff by Dr. Kibbe and other doctors during the progress of the trial. In the argument one of the plaintiff’s attorneys also made the statement that, if lie had not depended upon the assurance received from Dr. Kibbe previous to the trial, be would not have consented to the examination of the plaintiff by the doctors during the trial. It is quite probable that the plaintiff’s attorneys were surprised by the testimony of Dr. Kibbe and others who examined the plaintiff during the trial, but mere surprise is not: a legal- ground for setting aside the verdict of a jury, unless the party alleging surprise shows that its effect was to deprive him of a fair trial. In this case the plaintiff was not entrapped; he voluntarily consented to submit himself to a physical examination, and the examination was made by other physicians of his own selection as well as by Dr. Kibbe. [342]*342He was apprised of the result of the examination in its effect upon the-opinions of the different doctors before they were called as witnesses, and in consequence of that information he did not make Dr. Kibbe his witness. Upon a new trial the examination which was made may be shown by the testimony of the witnesses 'to the fact, and the opinions-of the same witnesses, based thereon, may be given in evidence. Facts-which have come to the knowledge of witnesses cannot be suppressed, and, presumably, if the testimony of the doctors was prejudicial to the-plaintiff upon the trial which has taken place, it will be equally prejudicial upon a second trial.
In his case in chief the plaintiff offered evidence in support of the allegations of his complaint as to the position and duty of John Lowrey, whom the complaint charges with negligence causing the injury. The defendant introduced evidence tending to prove that one of the written and permanent rules governing the operation of its coal mine in which the injury occurred forbids any person except the general underground superintendent to change, or in any way interfere with, the brattice or other arrangements for conducting air into the different crosscuts and chutes in the mine, and also offered testimony tending to prove that for the safety of the miners in different parts of the mine it is necessary that the arrangements for conducting and distributing air through the mine should be under the control of a single person, who must necessarily have knowledge of the requirements of the miners working in the different crosscuts and chutes; and that at the time cf. the injury to the plaintiff the only person who had a right to close an opening, or make any alteration in the brattice, was Mr. Evan Lewis, whose position was that of general underground boss or superintendent. The plaintiff, in rebuttal, called witnesses who have worked as miners in the mine where this injury occurred, and interrogated them as to the duty of a fire boss in said mine, and, upon an objection to these interrogatories being sustained by the court on the ground that the testimony called for was not proper in rebuttal, the plaintiff’s attorneys were permitted to make an offer of evidence which they -wished to introduce, and thereupon Mr. Teats, attorney for the plaintiff, made the offer as follows: “We offer to prove by this witness that it was the duty of John Lowrey, the fire boss, to arrange the canvas gate in the big-crosscut when requested by Mr. Sommers, to give Mr. Sommers more air; that that was one of the duties of the fire boss of this mine;” and, an objection being made to the introduction of the testimony as offered, the court sustained the objection on the ground that the same was not proper in rebuttal. In the argument of this inotion it is insisted that the plaintiff had the right in rebuttal to prove that the company’s rule-forbidding any person other than the general underground superintendent to interfere with the air passages was, in effect, annulled by the general practice of disregarding it. The manner in which the-different officers and employes of the defendant actually operated this-mine might show what were the duties assigned to them by the'ir employer, but duties and practices are not necessarily identical, and the-attorney should have informed the court at the time that he proposed to prove what the actual practice was, if, in fact, that purpose was in his-mind. His exception will not avail to give him the benefit of an [343]*343afterthought. It is useless to discuss the question as to the right of the plaintiff to prove in rebuttal that there had been habitual disregard of one of the standing rules governing the operation of the mine, because no evidence tending to prove any such practice was, in fact, cf. fered or suggested upon the trial; and for that reason alone I hold that the plaintiff’s contention on this point is without merit.
The part of the instructions to which exceptions were noted was given in an endeavor by the court to particularly define the issues, and to point out to the jury the disputed questions, which must necessarily be decided by the jury; and the whole matter as to what the evidence proved, as to the manner in which the accident occurred, and as to the plaintiff’s conduct, and whether the plaintiff was, by reason of any act or omission of his own, guilty of negligence which contributed to cause the injury to himself, was fairly submitted to the jury for their decision. The court, in the discharge of its duties in the case, could do no kiss; and, after considering again the charge given to the jury as a whole, as well as the particular part to which exception was taken, I am unable to find that the plaintiff has ground to complain of error or unfairness in the manner in which the case was submitted to the jury.
The court did not comment upon the evidence excejit to state that certain facts in the case were shown by uncontradicted evidence, and in this the plaintiff could not have been prejudiced, because the uncontroverted facts thus referred to by the court are, in the main, facts alleged by the plaintiff as part of the foundation of his case. Complaint is made that the court drew an inference that the plaintiff discovered gas at his working place a short time before the accident, which is contrary to his testimony, and that there was no evidence for the jury to consider tending to prove that he had made such discovery. It is a sufficient answer to this to say that I have already shown that the plaintiff testified to the fact of Ms having told Lowrey that he was getting gas, just a few minutes before the accident; and when the trial commenced his statement of his case in the complaint then on file alleged that he had made the discovery, and had reported it to Lowrey; and (he amendment made during the trial is merely an ingenious attempt to fasten upon the defendant the responsibility consequent upon having received from the plaintiff notice of the fact that gas was accumulating in the mine, without at the same time convicting himself of the folly of voluntarily and unnecessarily igniting a match in the gas with knowledge of its presence. It is the duty of a court, in giving its instructions to the jury, to make plain to them the questions which they are to decide, and to laydown ¡he rales which must govern them in making their decisions as to the facts, and to inform them that it is the province of the jury to decide all disputed questions of fact; and, the court having done so, a party has no right to complain, even if the court does, in a lair and impartial manner, make comments upon the testimony for the purpose of assisting the jury in reaching a just conclusion. This rule has been repeatedly affirmed and reiterated in the decisions of the supreme court of the United Hiatos and in the circuit court of appeals for the Ninth circuit. The provision in the constitution of the state of Washington which provides that “judges shall not charge juries with respect io ma e ters or fact, nor comment thereon, but shall declare the law” (artic e 4, § 1(5), is not applicable as a rule of practice in this court.
[344]*344Upon a general view of the whole case it is my opinion that the verdict rendered by the jury is a correct conclusion as to the legal rights involved. Just how the accident occurred may never be known. It is difficult to reconcile the plaintiff’s version with some of the proved circumstances, but it is equally difficult to reconcile the incontestable facts with any other theory which I have heard advanced; so we may adopt the plaintiff’s statement as being probably true, or at least as plausible as any statement which may be made v. from the testimony. His simple story, briefly told, is this: He was engaged in driving a chute upwards from a crosscut in the mine. He made a drill hole in the coal preparatory to putting in a charge of dynamite for blasting. When the hole was ready, he went down to the crosscut to obtain powder and fuse for the blast. While on this errand he met Lowrey, the fire boss, and told him there was not sufficient ventilation at his working place, that “we got more gas down there,” and requested him to close an opening so as to force a stronger current of air in his direction. He returned immediately to his working place, and first made an examination with his safety lamp to ascertain if there was gas there, and found that the place was elear of gas. He then made v. his cartridges, and put the same in the drill hole, put in a stick of giant powder with cap, and arranged his fuse, and tamped the filling. He then removed his tools to the crosscut, and returned, and lit a match for the purpose of firing the fuse, when the explosion occurred which injured him, as he claims, by setting fire to gas which had accumulated in a sufficient quantity to be combustible. The time intervening from his interview with the fire boss until the explosion occurred was altogether about 15 minutes. According to his own statement, it is plain that, if there was gas in the mine in a sufficient quantity to take fire from a lighted match, its presence would have been revealed to him before he lit the match, if he had observed his safety lamp. If the gas was there, and he was unaware of it, his ignorance was certainly due to his failure to observe his safety lamp. For him to light a match in a place where he knew that gas wa? liable at any time to come out of crevices and pockets in the coal—as he admits by his testimony that he did know—without observing his safety lamp, was a thoughtless and negligent act,' which I can only compare to the act of a thoughtless person throwing a lighted match or a stump of a cigar into a keg of gunpowder. If this story of the plaintiff is true, there was no failure on the part of the defendant company to furnish a sufficient current of air in the chute where he was working to remove standing gas and smoke, and the injury to plaintiff was not in consequence of negligence on the part of the defendant in permitting gas to accumulate and remain at his working place. He shows affirmatively by his own testimony that within a period of less than 15 minutes before the explosion the place was clear of gas, and it is a necessary conclusion from his testimony that, if a gas explosion did occur, it was by reason of a quantity of gas coming out of the coal suddenly. Such an occurrence could not be prevented, and the plaintiff’s misfortune must be regarded as the result of exposure to a danger necessarily incident to his employment, as a coal miner, and for which his employer is not legally liable to respond in damages.