Puget Sound Iron Co. v. Lawrence

concurred specially as follows:—

I concur in the conclusion to which my brother Allyn has arrived, upon the ground that the instruction quoted by him. is erroneous in láw. That instruction recognizes the rule that the burden of proof was upon the plaintiff below to establish the fact that the injury resulted from the negligence of the defendant. The error exists in the latter part of the instruction, where it is held that plaintiff having made a prima facie case, it then devolves upon the defendant to overcome the case so made “by a clear preponderance of the evidence”; whereas if the evidence when all received and considered did not leave a preponderance in favor of the plaintiff, the defendant was entitled to a verdict.

I concur in the criticism of Justice Allyn upon the language o'f the tenth instruction. The fourth instruction is, perhaps, erroneous in this: “When an employee is suddenly ordered to do an unusually dangerous thing, he is not required or expected to deliberate upon the danger,” etc. The intention was, doubtless, to instruct the jury that in a case of sudden and unexpected danger, an order being given by the master, requiring instant-execution by the servant, deliberation by him as to the' danger would not be required or expected in order to free him from negligence. This would have little to do-with the suddenness of the order, but would arise from the fact that the danger was not such as might be reasonably anticipated, and was in fact unforeseen, and must be met by promptness in obeying the master’s order. The evidence is not reported to us, and consequently we are unable to say that this instruction as given would. *233actually mislead the jury. The tenth instruction may or may not be obnoxious to the criticism here urged against it, — that depends upon the evidence, and the remainder of the charge; and as that is not set forth in the brief, we are not able to say that this instruction is erroneous; there is no error upon, its face, and none is shown.

delivered the opinion of the court.

The plaintiff in the court below was an employee of appellant, the Puget Sound Iron Company. In the course of his employment he was assisting in the removal of an engine bed-plate up an incline; for this purpose a 4£ inch manilla rope was used, with blocks, pulleys, etc. The rope broke from some hidden defect when the bed-plate was about two thirds of the way up the incline, and the bed-plate, thus relieved, descended, injuring one of plaintiff’s arms. There was evidence tending to show this rope to have been sufficiently and properly tested; and on the other hand, evidence tending to show that this had not been thoroughly or sufficiently done, and that the defect should have been seen through discoloration, etc. The jury found for the plaintiff. It is claimed that the court erred in several. instructions excepted to at the time, but we think it sufficient to consider only the sixth instruction; and in fact, no considerable stress seems placed on the others.

The sixth instruction, given at request of plaintiff’s counsel, and excepted to by defendant, is as follows: “ The fact that the rope was broken in the performance of the work in question is of itself prima facie evidence *231that the defendant did not use reasonable care or diligence in the selection and use of the rope, blocks, and apparatus in question; and to overcome such prima facie evidence of negligence, the burden of proof is upon the defendant corporation; and unless the defendant establish by a clear preponderance of the evidence that before said rope, blocks, and apparatus were used for the work in question, the defendant, through its agents, used ■every available and ordinary means to ascertain any defects there might be in the rope, blocks, and apparatus, then you must find that the defendant was guilty of negligence, and if the plaintiff was injured by such negligence, and was not in fault, you must find a verdict for the plaintiff.” The rule thus announced as to care and diligence in such a case we find no fault with; but to go further, as herein, and say in effect, “ the burden ■of proof is then upon the defendant to establish by a •clear preponderance,” is certainly not correct, and a very dangerous use of terms. The presumption first stated made it incumbent upon the defendant to satisfactorily explain, as the jury should have been told, but they might naturally infer, and doubtless did, that the “burden of proof” was shifted. More than this: the defendant, it is said, must do this by a clear preponderance, etc. It was held in a late case, “ an instruction, ‘unless the preponderance of evidence clearly shows/ etc., was erroneous, the word ‘ clearly ’ being calculated to lead the jury to believe that something more than a mere preponderance was necessary.” (Prather v. Wilkins, 4 S. W. Rep. 252 (Tex.).) The remaining portion of the instruction is perhaps equally objectionable in requiring the defendant to use “every available means,” etc., it ■clearly implying an examination and test of much more than the usual and ordinary character.

For these reasons, we think the instruction would almost certainly mislead the jury, and the judgment is *232therefore reversed, a new trial granted, and the cause remanded for further proceedings.

Turner, J., and Langford, J., concurred.