Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Department Two
Appeal by defendant from judgment in favor of plaintiff, and from order denying motion for new trial, in the District Court of the Fourteenth Judicial District, County of Nevada. Reardon, J.
COUNSEL:
The defendantbeing at the time of the accident in the lawful pursuit of its legitimate business, the injury of plaintiff is damnum absque injuria, unless upon proof of negligence on the part of defendant or its agents. (Rood v. N.Y. & E. R. Co. 18 Barb. 85.) Negligence defined (Nitro Glycerine Case, 15 Wall. 536); and the burden is on plaintiff to prove it. (Id. 537.)
As to degree of care required of defendant (Hoffman v. Tuolumne W. Co. 10 Cal. 413; Todd v. Cochell , 17 id. 98. Civ. Code, §§ 1970, 1971.)
The servant is himself bound to exercise proper care. (Wood's Master and Servant, 558; Hayden v. Smithville , 29 Conn. 558.) The plaintiff was aware of the particular risk, and accepted it, and cannot complain. (Sullivan v. India M. Co. 113 Mass. 398-9; Coombs v. N. Bedf. C. Co. 102 id. 572; Smith v. First Nat. Bank , 99 id. 605; Priestley v. Fowler, 3 Mees. & W. 1-7; Wharton on Neg. §§ 200, 214; Owen v. N.Y. C. R. R. Co. 1 Lans. 110; Faulkner v. Erie R. E. 49 Barb. 324; Sherman v. R. & S. R. R. Co. 17 N.Y. 156-7; McGlynn v. Brodie , 31 Cal. 376; Farwell v. B. & W. R. R. Co. 4 Met. 57.)
The evidence is insufficient to justifythe verdict, and a new trial should have been granted. (Bagley v. Eaton , 8 Cal. 164; Potter v. Carney , 8 id. 574; Minturn v. Burr , 20 id. 48; Lyle v. Rollins , 25 id. 437; Iburg v. Suanet , 47 id. 265.)
The preponderance of the evidence is so great as to show injustice, and the verdict should be set aside. (Townsend M. Co. v. Foster, 51 Barb. 346; Adsit v. Wilson, 7 How. Pr. 66; Conrad v. Williams, 6 Hill, 444; Jackson v. Sternbergh, 1 Caines, 162.
Dibble & Kitts, and Geo. S. Hupp, for Appellant.
H. V. Reardon, for Respondent.
The defendant was guilty of negligence in furnishing the plaintiff a dangerous compound to work with, and dangerous implements with which to use it.
There is no material issue entirely unsupported by evidence, and the verdict will not be disturbed. (Algier v. Steamer Maria , 14 Cal. 167; Brown v. Smith , 10 id. 511.) The negligence of the master's agents is his own. (Flike v. Boston A. R. Co. 53 N.Y. 553, and numerous other cases cited.) Counsel here cites very numerous authorities to support the instructions.
JUDGES: Myrick, J. Thornton, J., concurred. Sharpstein, J., concurring.
OPINION
MYRICK, Judge
This action was brought to recover damages for personal injuries to plaintiff, caused by the premature explosion of blasting powder, known as Excelsior powder, manufactured by one Haffenager. Under the pleadings in this case the substantial issues were:
1. As to the safety of the Excelsior powder as a blasting powder.
2. As to whether the defendant exercised due care in supplying a reasonably safe powder, and in permitting the Excelsior powder to be used by its workmen.
3. Whether the plaintiff knew or ought to have known of the qualities of the powder, and whether he exercised due care in its use.
4. Whether the defendant provided proper appliances for the use of the powder.
The Court fully and clearly instructed the jury as to the relations existing between plaintiff and defendant as master and employe, the obligations resting upon each toward the other, and as to the care proper to be exercised by each.
Upon the trial, plaintiff asked the witness Price whether Haffenager was a skillful chemist or scientist. Plaintiff also asked the witness Drisco as to the reputation of Haffenager as a scientist or chemist. Notwithstanding defendant's objection, the Court permitted the questions to be asked. There was no error in these rulings, as the defendant had by its answer tendered the issue " that said Haffenager was reputed to be and was an accomplished chemist and scientist." Plaintiff asked the question, " What was the reputation of Haffenager's powder as a safe or dangerous blasting compound?" The witness to whom this question was put, was a quarryman at the Oakland quarry. It does not appear that the reputation referred to by the inquiries to him ever came to the knowledge of defendant or its officers or agents; nor that it existed in any place where it would be the duty of defendant to have made inquiries; nor did plaintiff offer to place that reputation in any locality; the witness may have known the reputation of the powder at Oakland, or in some foreign country. The reputation of the powder was not directly in issue. Its safety was the point in issue. Its reputation was material only in the light of showing whether defendant used proper care in ascertaining its safety. The admission of the answer to this question was error.
The defendant's witness, Polglase, testified that he was a practical miner, not a scientist or chemist; did not know what ingredients composed the Excelsior, black, or Giant powder; had used blasting powders twenty-two years; had used about six hundred pounds of Excelsior powder in six hundred to a thousand blasts in the defendant's mine before the injury to plaintiff, and that no injury of any kind had occurred. He was then asked by defendant, " In the light of your experience, what do you say as to the safety of the Excelsior powder for blasting purposes?" Plaintiff's objection to this question was sustained. Under § 1870, subd. 9, Code of Civil Procedure, defendant was entitled to the opinion of the witness, otherwise no miner, nor any person not a professional scientist or chemist, no matter what experience he may have had, can give his opinion. Usually, the question whether a person be an expert is for the trial court to determine definitely, and the ruling will not be reviewed; but in this case we think the defendant was entitled to the opinion of the witness, based as it was upon his own experience. (Estate of Toomes , 54 Cal. 509, and authorities there cited; Blood v. Light , 31 Cal. 115.)
We think that all the instructions given, and all the rulings upon instructions, were correct, with one exception, viz:
" Ninth .--That there is another qualification or exception to the risk which the servant assumes, and that is, he assumes no risk, except such as existed at the beginning of the employment, and such as are incident to the business."
This instruction was given at the request of plaintiff. As we understand the instruction, it is, that the employe assumes such risks, and such risks only, (not incident to the business) as existed at the beginning of the employment; and if there be a risk which did not exist until after the beginning of the employment, but commenced to exist during the course of the employment, the employe had no risk regarding the same. We do not think that this instruction states the correct rule. It should have added to it words equivalent to these: " or which existed during the course of the employment, of which the employe had knowledge or was bound to have knowledge." If an appliance be introduced after the commencement of the employment, from the use of which follows a risk which the employe knows or ought to know--that is, if the risk or danger be known to him or be patent and obvious--he assumes the risk by continuing in the employment.
G. D. Buckley, Esq., attorney for respondent, makes the point, " There can be no valid appeal from the decision of the Court denying the defendant's motion for a new trial, for the reason that no notice of motion to that effect was served upon the plaintiff's attorney of record." The history of the case relating to attorneys for plaintiff is as follows: The complaint is signed " G. D. Buckley, plaintiff's attorney." The order of court, rendering judgment, recites that the cause came on for trial; " the said parties appeared by their attorneys; G. D. Buckley and H. V. Reardan appeared as counsel for the plaintiff," etc. Service of defendant's motion for a new trial was accepted by " H. V. Reardan, one of the attorneys for plaintiff." Service of the notice of appeal was admitted by " G. D. Buckley and H. V. Reardan, plaintiff's attorneys." Service of the transcript was admitted by " G. D. Buckley and H. V. Reardan, attorneys for plaintiff and respondent." The transcript is indorsed, " G. D. Buckley, Esq., H. V. Reardan, Esq., attorneys for respondent." Three briefs have been filed on behalf of respondent, one signed " Buckley & Reardan, attorneys for respondent," one " H. V. Reardan, attorney for respondent," indorsed " G. D. Buckley, Esq., H. V. Reardan, attorneys for respondent"; the other, in which the point is made, is signed " G. D. Buckley, attorney for respondent." On the argument, both gentlemen appeared and took part.
From this history it seems to us that Mr. Buckley has recognized Mr. Reardan as his associate in the case sufficiently to estop him and his client from now saying that Mr. Reardan was not, at the service of notice of motion for a new trial, one of the attorneys for plaintiff, and as such entitled to receive the service. Mr. Buckley's acts constitute a waiver. Any other view would be as unjust to Mr. Reardan as to the defendant.
Judgment and order reversed, and cause remanded for a new trial.
CONCUR
SHARPSTEIN
Sharpstein, J., concurring:
I concur in the reversal of the judgment and order denying defendant's motion for a new trial. As to the point that the notice of motion for a new trial was not served on the plaintiff's attorney of record, I think that it should be disregarded, on the ground that the objection comes too late.