Titus v. Anaconda Copper Min. Co.

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

The plaintiff was employed by the defendant company as a stationary engineer, and while in the discharge of his duties was injured. He brought this action to recover damages. In his complaint he describes somewhat minutely certain working parts of the engine, and alleges that a bracket which supported a valve-rod, on the end of which rod was a clutch designed to engage and raise the dash-pot rod, had been broken; that it had been repaired and kept in use until it became loose, rickety, unstable and failed properly to perform its function, with the result that the valve-rod and clutch, no longer kept in place, also failed to perform their duties; that this defect in the bracket was known to the defendant company, or should have been known to it, but that such defect was latent, unknown to the plaintiff and undiscoverable in the exercise of ordinary care while the engine was running; that there was a tension spring attached to the clutch for the purpose of regulating the contact of the clutch with the dash-pot rod; that on August 5, 1908, when plaintiff went to work, he was informed by the defendant’s foreman, who was then in charge of the engine, that the machinery was in proper working condition, except, perhaps, that the tension spring was loose ; that this information was false and misleading but believed by the plaintiff to be true, and was relied upon by him; that when the clutch failed to attach to the dash-pot rod, he, relying upon the information given him by the foreman, undertook to tighten the spring while the engine was running, with the result that his hand was caught in the machinery and cut and injured, and that *588 his injury was caused proximately by the broken and defective condition of the bracket. The defendant interposed a demurrer and motion to strike, and, these being overruled, answered’ denying the allegations of its negligence and pleading contributory negligence and assumption of risk. Upon these affirmative pleas there w„as issue by reply. The trial of the cause resulted in a verdict for the plaintiff, and from the judgment entered thereon and from an order denying it a new trial, the defendant appealed.

1. We are unable to agree with counsel for appellant in their analysis of the complaint. In the statement above we have fairly [1] epitomized the allegations, and while the pleader might be convicted of prolixity, the essential facts necessary to a statement of the cause of action are not difficult to detect. Terseness of expression is a most refined accomplishment, but it cannot be enforced as a rule of pleading.

Counsel for appellant err in construing an allegation of knowledge at the time the complaint was prepared into an admission of knowledge at the time the injury occurred. A careful reading of the complaint makes clear the plaintiff’s meaning.

2. Over the objection of defendant, evidence was introduced [2] of certain things done by the defendant after the accident, in the nature of repairs and replacements. Upon the submission of the cause defendant requested an instruction withdrawing this evidence from the consideration of the jury altogether. The request was denied and error is predicated upon the ruling. It is elementary that evidence of repairs or improvements is not evidence of prior negligence. The plaintiff assumed the burden in this instance of showing (a) that the bracket was out of repair at the time he was injured, and (b) that such condition was due to the defendant’s negligence. While evidence of the condition of the bracket on the day following the injury would not tend to prove negligence, it might throw light upon the condition of the bracket when the injury occurred, and for this purpose the evidence was admissible.

In support of their contention that error was committed, counsel for appellant cite Limberg v. Glenwood Lumber Co., 127 Cal. 598, 49 L. R. A. 33, 60 Pac. 176. That case was decided *589 upon the authority of Sappenfield v. Main St. etc. Ry. Co., 91 Cal. 48, 27 Pac. 590. In each of these eases the court proceeded upon the theory that the only purpose for which the evidence of after-repairs was offered was to prove prior negligence. However, in the later case of Dow v. Sunset T. & T. Co., 157 Cal. 182, 106 Pac. 587, the same court clearly distinguishes between the rule which excludes evidence of after-repairs as proof of prior negligence, and the rule which admits evidence of defective condition after the injury, as tending to prove the like condition at the time of the injury.

In 3 Bailey on Personal Injuries, second edition, section 782, page 2101, it is said: “So the fact that a defective appliance was repaired after an accident may be shown upon the question of what was broken, and how, and what was wanting, although improper for the purpose of showing the employer was negligent in not making repairs and alterations before the accident.”

When the evidence was offered, counsel for plaintiff announced: “This is for the purpose of showing that the bracket [3] absolutely was unstable and rickety at the time Mr. Titus was hurt. We propose to show the next day that they propped it up with a block of wood.” For the purpose indicated the evidence was admissible. (Pullen v. City of Butte, 45 Mont. 46, 121 Pac. 878, approving Dow v. Sunset T. & T. Co., above.) Instead of requesting the trial court to charge the jury to disregard the evidence, the defendant should have asked for an instruction limiting the effect of such evidence. Having failed to make a proper request, it cannot complain that the court refused their erroneous instruction.

3. Complaint is made that counsel for defendant were re-[4] stricted unduly in their cross-examination of the witness Howley. The record discloses, however, that the same witness was thereafter called by the defendant and testified at length as to the matters involved in his cross-examination while a witness for plaintiff; so that if any error was committed, it was error without prejudice. It is idle for counsel to appeal to this court for a reversal upon a bare apex juris.

*590 4. It is urged that this record discloses that in attempting to [5] tighten the spring, plaintiff assumed the risk of injury. If his act had been entirely voluntary, there might be some ground for this contention; but it appears that when plaintiff went on shift he was informed by the foreman, who was then, and had been during the preceding shift, in charge of this engine, that if there was anything the matter with the engine causing it to miss, the fault was in the loose spring. Plaintiff had a right to rely upon this information coming from one whose business it was to know, and he testified that he did so. Under the circumstances as here disclosed the foreman in effect substituted his own judgment for that of the plaintiff, and the defendant company must bear the responsibility for the consequence of the error of its vice-principal due to his negligence in failing to make investigation which would have disclosed the true nature of the trouble. (4 Labatt’s Master and Servant, 2d ed., secs. 1373-1375; Toone v. O’Neill Constr. Co. (Utah), 121 Pac. 10.) The question of assumption of risk properly went to the jury.

5. Plaintiff’s situation was not materially different from what [6] it would have been had the foreman specifically ordered him to attempt to tighten the tension spring with his fingers while the engine was in motion. The evidence is all to the effect that if the trouble had been caused by a loose tension spring, it could have been cured safely by the method adopted by the plaintiff. The real difficulty was with the loose bracket, and because of the engine’s vibration, this could not be discovered while the engine was running under a load. Under these circumstances the plaintiff may properly invoke the rule that if the master orders the servant into a situation of danger, and in obeying the command he is injured, the law will not charge him with contributory negligence, unless the danger was so glaring that no prudent man would have entered into it, even under orders from one having authority over him.” (Wurtenberger v. Metropolitan St. Ry. Co., 68 Kan. 642, 75 Pac. 1049.)

The other alleged errors do not demand separate consideration. The judgment and order are affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Banner concur.