Simmons Mfg. Co. v. Eskridge

U.S. Court of Appeals for the Seventh Circuit
Simmons Mfg. Co. v. Eskridge, 168 F. 675 (7th Cir. 1909)
94 C.C.A. 161; 1909 U.S. App. LEXIS 4486

Simmons Mfg. Co. v. Eskridge

Opinion of the Court

SEAMAN, Circuit Judge

(after stating the facts as above). The judgment against the defendant below rests upon the verdict of a jury, under instructions by the court which clearly limited and defined the issues of fact to be considered therein, and, in reference to such narrowing of the issues and the moderate amount assessed for recovery, it is plain that the defendant has no cause for complaint. While the errors assigned, upon which reversal is sought, are numerous, the main contention for reversible error in the argument is predicated upon denial of the defendant’s motion for direction of a verdict *677iii its favor. The various complaints of error in the instructions to the jury, either given or denied, are involved, as well, in some measure in the consideration of that motion; and we believe that all of the assignments, aside from the alleged insufficiency of evidence to authorize submission to the jury, may rightly be embraced, in general terms, under two classifications respectively, as exceptions to rulings (a) upon testimony received or offered, and (b) upon instructions given or refused.

1. Was an issue of fact presented by the testimony for submission to the jury? The plaintiff was injured in the service of the defendant corporation while operating a freight elevator in the defendant’s factory, through the fall of the car caused by a breakage of the machinery, without fault on the part of the plaintiff in such operation. His complaint in the suit alleged (in effect) twofold negligence on the part of the defendant as the cause of such injury: (1) That the breakage was due to defective machinery which should have been discovered and replaced; and (2) that it failed to provide a safety appliance, which was well known and commonly used for such elevators, to prevent fall of the car under like conditions. On motion of the defendant, the trial court excluded the first-mentioned charge of negligence and the testimony thereunder from consideration by the jury, but overruled such motion in reference to the other alleged breach of duty. The case was then submitted to the jury, with instructions which are not open to question, for plain limitation of the issue of negligence on the part of the defendant accordingly, namely, that they were to ascertain from the testimony whether the duly of the defendant to exercise ordinary care for the safety of its servants (as defined in the instructions) was violated by the failure to provide another safety appliance for the elevator, described in the testimony as a “speed governor,” or its equivalent.

The contention that the court erred in overruling the motion on the branch of the case thus submitted to the jury is pressed under these propositions, in substance: (a) That the evidence was insufficient to raise such issue of negligence; and.(b) that the safety device used by the defendant “was conclusively shown to be in general use, as much as, or more than, the device which the plaintiff claimed should have been used.” On reference to the testimony, however, we are satisfied that neither of these premises of fact is tenable. It was undisputed that the only safety appliance provided by the defendant was one known as the “cable safety,” serving alone for protection when the cable breaks or tangles, and that another device, called a “speed governor,” was well known, effective, and frequently used in elevators serving four or more floors in a factory, which provided as well against fall of the elevator from breakage of machinery or other causes. The testimony clearly tends to establish that the efficiency and superiority of the “speed governor” is well recognized for such purposes, and the only substantial dispute appears upon the inquiry of general use in like factories of four and five stories. While the testimony is conflicting as to the generality of such use, ample support appears, as we believe, for submission of that question to the jury and for their finding thereupon.

*678The doctrine is well settled that it is the duty of the master to exercise ordinary qare for the safety of his servants, to be measured by the known hazards of the service, and that such care extends to provision for reasonably safe working places, machinery, and appliances for use of the servants. Armour & Co. v. Russell, 144 Fed. 614, 615, 75 C. C. A. 416, 6 L. R. A. (N. S.) 602, and authorities cited. While the master incurs no obligation as insurer, either against the risks of such service, or that the means so provided are sufficient for protection, he does assume, in the employment of servants, the obligation to exercise care to that end, as above stated. Thus the issue was . distinctly presented by the testimony referred to, whether the defendant exercised ordinary care, under conditions which were known, in providing the “cable safety” alone for protection against accidents —plainly an issue of fact for determination by the jury, under instructions upon the limits of duty above mentioned.

In the oral argument, we understood counsel for the defendant to. urge, as another proposition for support of the motion to direct a verdict in its favor, that this fact was undisputed: That 'the plaintiff retained hold of the brake rope unnecessarily, and was thus suspended above the car when it struck bottom and broke or released the rope, so that plaintiff’s injuries are attributed to the fall thus occasioned, either as the proximate cause, or as a contributory cause, for which recovery is unauthorized. The inferences of fact, however, from that and other circumstances in evidence, were for the jury to ascertain, and were rightly submitted, as we believe, under the instructions.

2. On examination of the record referred to in each of the assignments of error for rulings in admitting or rejecting testimony, we are of opinion that each must be overruled, and that the only one which raises a question of sufficient merit or interest, either to require or justify special reference and discussion, is assignment No. 23. In that instance a witness (Chapman) on behalf of the defendant testified (in part as an expert) in reference to the operation and extent of use of the “cable safety” and “speed governor” appliances in his Wisconsin territory, as inspector for the Travelers’ Insurance Company. On cross-examination on the part of the plaintiff, he was asked “whether the Travelers’ Insurance Company is interested in this' case or not” ? The defendant’s objection, as immaterial, was overruled, and the witness answered, “Why, to a certain extent I suppose they are,” with, the remark that he did not know, as he knew nothing about their business outside of his own part. Motion to strike out this answer was also denied. We may well assume (as counsel contends) that evidence on the part of a plaintiff in such actions is inadmissible for the purpose of establishing the fact that the defendant is insured against the risk, in suit; but such rule is nevertheless without force, as we believe, .to exclude the above-stated inquiry and answer, upon cross-examination of this witness, who had so testified in reference to the controverted, facts in issue. Its tendency to show that his testimony may not be that of an impartial witness is obvious, and thus may affect its credibility, within the legitimate object of cross-examination.

3. The instructions which the trial court gave to the jury are preserved in the bill of exceptions, and their careful examination con-*679vinccs us that error is not well assigned thereupon. Their limitation of the issues, in conformity with the previous ruling above mentioned under the defendant’s motion, appears in clear terms; and the rules applicable for determination of the issues are well defined, leaving no just ground for complaint, either of indefiniteness or misdirection.

On behalf of the defendant, numerous propositions were tendered for instructions to the jury, of which some were incorporated in terms in the instructions, and those not so adopted in the terms of the request were noted as denied, with allowance of an exception. Error is assigned upon each of the propositions thus denied. We are of opinion, however, that the essence of all thereof, in so far as the request stated correctly a proposition of law directly involved for consideration in the case, was embraced in the instructions which were given, and that no reversible error appears thereunder.

The assignments of error respectively for review of the judgment are therefore overruled, and the judgment is affirmed.

Reference

Full Case Name
SIMMONS MFG. CO. v. ESKRIDGE
Status
Published