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3. With reference to the alleged error of the court in refusing to grant a nonsuit but little need be said. It is true that an employé assumes all the ordinary risks incident to his employment; but it was the duty of the plaintiffs in error to use reasonable care and diligence to keep the tunnel in a reasonably safe condition, so that their servant might not be exposed to unnecessary, unreasonable, or extraordinary risks. The servant only undertakes the risks of the employment so far as they spring from defects incident to the service. He does not take the risk of the negligence of the master.
Railroad Co. v. O'Brien, 161 U. S. 451, 457, 16 Sup. Ct. 618, 40 L. Ed. 766, and authorities there cited. For a failure to exercise this duty which results in an injury to the employé the employer is liable. Railroad Co. v. Peterson, 162 U. S. 346, 353, 16 Sup. Ct. 843, 40 L. Ed. 994; Railroad Co. v. Barrett, 166 U. S. 617, 17 Sup. Ct. 707, 41 L. Ed. 1136; Same v. Archibald, 170 U. S. 665, 669, 18 Sup. Ct. 777, 42 L. Ed. 1188; Railroad Co. v. Jarvi, 3 C. C. A. 433, 53 Fed. 65, 68; Hanley v. Construction Co., 127 Cal. 232, 239, 59 Pac. 577, 47 L. R. A. 597; Bowen v. Railway Co., 95 Mo. 268, 273, 8 S. W. 230. This duty and liability is personal to the master, and cannot, in any case of this character, be so delegated by the master as to relieve him of his liability. Railroad Co. v. Herbert, 116 U. S. 642, 648, 6 Sup. Ct. 590, 29 L. Ed. 755. Applying these principles of law to the facts of this case, it is manifest that the court did not error in refusing to instruct the jury to return a verdict for the plaintiffs in error. The authorities cited by plaintiffs in error contain correct principles of law as applied to the facts of each case; but an examination of them shows that the servant either voluntarily entered a service known to him to be dangerous, or which afterward became dangerous to him, and with full knowledge thereof he continued work without notifying his employer of the danger; or where the servant knows of the hazardous character of the work and is injured by an accident which could not have been foreseen by his employer; or where the service in which the servant is engaged includes the duty on his part of preparing the timbers or appliances used in the construction of a tunnel or in the erection of buildings, etc. This case does not present any such questions. The distinction between the case at bar and the cases relied upon by plaintiffs in error are clearly pointed out in Hanley v. Construction Co., supra. In Kelley v. Dyeing Co., 12 R. I. 112, 116, 34 Am. Rep. 615, cited by counsel, the court, after holding that plaintiff had assumed the risk under the first point above stated, said:
"If, when the danger occurred, the plaintiff had notified the defendant of it. and had been induced to remain in his position by assurances that it should be remedied, or, as some of the cases hold, by a reasonable expectation that it would be remedied, then it would not necessarily be presumed from his knowledge of the danger that he had assumed the risk.”
Upon the question of the assumption of risk and alleged contributory negligence upon the part of Bender, it is only necessary to add that the charge of the court upon these points, to which no specific objections were made, was as favorable to the plaintiffs in error as the law and testimony would warrant.
4. There were but two exceptions taken to the charge of the court. After stating that it was essential to a recovery that the plaintiff must prove "that the defective timbering was due to the negligence of the defendants, or, in other words, that its unsaie and dangerous condition was, or, by the exercise of ordinary care, could have been, known to the defendants in time to prevent the injuries complained of,” the court said:
“On this branch of the case the court instructs you, further, that an employer does not guaranty the absolute safety of the place where the employé works; but it is the duty of the employer to exercise ordinary and reasonable care in providing a safe place for the employé to work in, and this duty cannot be delegated to a servant, so as to exempt the employer from liability for injuries caused to another servant by its omission. The servant does not undertake to incur the risks arising from negligence in providing or maintaining a suitable and safe place for his work. His contract implies that, in regard to this matter, his employer will exercise due care in making adequate provision that no danger shall ensue to him. It was the duty, therefore, of the defendants, resulting from their employment of the plaintiff as a la borer, to exercise reasonable care in properly timbering the tunnel."
This portion of the charge was objected to on the ground that it does not take into consideration the exception to the general rule therein stated, that the rule does not apply where the preparation of the place in which the employé is to work is a part of the very work which he and his fellow servants are employed to perforin, and for the further reason that the rule of law set forth in the said instruction does not apply where the employé is employed to repair a defect itself obviously, and from the very nature of the case, dangerous to all persons employed in such work. It is a sufficient answer to these objections to say, in addition to what has already been said upon this subject, that the facts testified to did not bring the case within any of the exceptions to the general rule stated in the instruction.
The other portion of the charge complained of reads as follows: "The damages, if any, in this case cannot be exemplary, that is, given by way of example or punishment, but must be limited to actual or compensatory damages; and in estimating their amount you should take into consideration the monetary loss, if any, sustained by plaintiff through in. ability to work during the periods of his incapacity and probable incapacity alleged in the complaint, also the condition of his health, and physical ability to labor, before the accident complained of, as compared with the present condition thereof, and how far the injury is probably permanent in its character and results, as well as the physical and mental suffering he has suffered, if any, by reason of the injury; and you will allow such damages as in your opinion will fairly and justly compensate plaintiff for all the injury and loss and suffering, physical and mental, sustained by him, as the direct and proximate results of the accident, not to exceed the amount demanded in the complaint."
Exceptions were taken to the use of the words we have italicized. We are of opinion that this portion of the charge was correct. The authorities in support thereof are cited in Railroad Co. v. Roller, 41 C. C. A. 22, 100 Fed. 738, 750, 49 L. R. A. 77. In that case the court, after stating that the damages, if any, which could be recovered, are compensatory damages,-such damages as would naturally
flow directly from the injury, if any, occasioned to Mrs. Roller by said collision, said:
"These compensatory damages embrace all damages for bodily and mental pain and suffering which have resulted to said Katherine A. Roller from said injuries, and if said injuries are permanent, or she has not recovered from them, such damages, also, as you may find from the evidence it is fair to believe she will suffer from said injury in the future.”
This court said, “This part of the charge was unquestionably correct.” The use of the word "probable" in this instruction, which is criticised by counsel, could only be construed to have the same meaning as “it is fair to believe
the plaintiff will suffer * * * in the future," and does not call for any conjecture or guess upon the part of the jury, and it is apparent that the jury could not have been misled thereby. There was some evidenceperhaps slight-sufficient to authorize the court to give the instruction.
Bender himself testified: “Before the occurrence of this accident I was very healthy, and my arms were in good condition. My right arm was broken in two places. It now pains me continuously, and is stiff. I cannot use it well. I cannot close my whole hand.
I am working now, and the effect of this work upon my hand is that the hand always hurts me at nighttime; and it hurts me also during the day when I am using it."
5. The entire charge of the court to the jury was substantially correct in all particulars, and was directly applicable to the issues raised by the pleadings and the testimony given at the trial, and embraced all the points upon which it was necessary to instruct the jury. Some of the instructions asked for by the plaintiffs in error which were refused contained correct principles of law, others were misleading, and some of them were clearly erroneous. As to these instructions, it is only necessary to say that the points involved therein were all embodied in the charge of the court in a clear, concise, and correct manner. It was unnecessary to repeat them. The general rule with respect to this matter is well settled that instructions on points which have been sufficiently covered by other instructions may properly be refused, although they are correctly drawn and applicable to the evidence. This is so, whether the instructions requested are covered by the general charge, or whether the mode of expression is the same or different. The duty of the court is fully discharged if the instructions embrace all the points of the law arising in the case, in the court's own language. It is the duty of the court to simplify its directions to the jury and make every effort to render them as free from complexity as possible. The reason for this rule is obvious. Repetition tends to incumber the record, and to confuse and embarrass the minds of the jury, and it is also liable to give undue prominence to the proposition repeated. 11 Enc. Pl. & Prac. 288.
The judgment of the circuit court is affirmed, with costs.
(114 Fed. 10.)
CORBUS V. LEONHARDT.
(Circuit Court of Appeals, Ninth Circuit. February 3, 1902.)
1. WITNESSES-COMPETENCY - TESTIMONY AGAINST DECEDENTS — TERRITORIAL
Rev. St. U. S. $ 858, providing that in actions by or against executors, administrators, or guardians neither party shall be allowed to testify against the other as to any transaction with or statement by the
testator, intestate, or ward, etc., has no application to territorial courts. 2. SAME-LAWS OF OREGON-APPLICABILITY TO ALASKA.
Act May 17, 1884, “providing a civil government for Alaska" (23 Stat. 24), by section 3 provides for the establishment of "a district court for said district, with the civil and criminal jurisdiction of district courts of the United States." Section 7 declares "that the general laws of the state of Oregou now in force are hereby declared to be the law in said district, so far as the same may be applicable and not in conflict with the provisions of this act or the laws of the United States." The laws of Oregon at the time made no restrictions excluding wit. nesses from testifying in any cause (1 Hill's Ann. Laws Or. § 710). Held, that such laws were in force in Alaska, and parties were not restricted from testifying with relation to transactions with or state
ments of decedents. 3. SAME-What TESTIMONY Excluded.
In an action by a physician against an administrator for services rendered his decedent during the latter's lifetime, plaintiff's testimony as to his services, the value thereof, and that no part thereof had been paid, did not relate to any transaction with or statement of the decedent,
and was admissible. 4. PussiciaNS-ACTIONS FOR SERVICES-DEFENSES.
Defendant's evidence tended to show that decedent was employed by a corporation, and was a subscriber to a hospital, and that a verbal contract existed between the hospital and the company that all the latter's employés, by paying $1 per month, should be entitled to medical attendance at the hospital free. There was conflict in the evidence as to whether subscribers were entitled to treatment at their homes, where decedent's treatment was received. Plaintiff testified that he never agreed to attend subscribers away from the hospital, which was not denied. Held not to sustain the defense that plaintiff could not recoyer
because the services were rendered under contract with the hospital. 6. SAME-RECEIPTS-MISLEADING INSTRUCTIONS.
A receipt given decedent by a physician recited: "To attending Mrs. D. (decedent's wife) and baby, $25.00; ferry charges, $31.00. Rec'd payment in full to date." In an action by the physician for services rendered decedent himself, plaintiff admitted that he had been paid for his services in attending the wife and baby. There was direct conflict as to whether at the time of its payment the physician had not stated that it was in full for all charges for treating decedent, as well as bis wife and baby. Held, that a charge that defendant had introduced in evidence a receipt reciting the payment in full to date, and that the receipt was prima facie evidence that all indebtedness was paid, etc.,
was properly refused. 6. REQUESTED INSTRUCTIONS.
A requested charge is properly refused where covered by charges given. In Error to the District Court of the United States for Division No. I of the District of Alaska.
This action was brought October 14, 1898, by the defendant in error to recover from Robert Duncan, Jr., the sum of $500 for medical services rendered during the months of January, February, and March, 1893,-in all, 100 visits, from Juneau to Douglas Island, Alaska. Duncan died April 14, 1899. The plaintiff in error was duly appointed administrator of the estate of Robert Duncan, Jr., November 2, 1899, and was afterward substituted as the defendant in said action. In his answer he admitted the rendition of the services, but denied they were worth the sum of $300, or any other sum; alleged that Robert Duncan, Jr., in his lifetime, paid plaintiff in full for all services rendered; and further alleged that all services rendered Duncan "were rendered in behalf of the St. Ann Hospital.” The case was tried before a jury, and resulted in a verdict in favor of the defendant in error in the sum of $500. Judgment was duly entered for said sum.
There are but two assignments of error, viz: "(1) The court erred in admitting in evidence to the jury the following testimony of the plaintiff, S. C. Leonhardt, to wit: 'My name is Samuel C. Leonhardt. I reside at Juneau, Alaska, and am a physician and surgeon. I knew the defendant, Robert Duncan, Jr., in his lifetime. I performed services for him in his lifetime. I was sent for, as a private case, and attended Mr. Duncan. I also attended Mrs. Duncan and the baby. I attended Mrs. Duncan during her confinement, and, for some two months after, for milk leg. The baby was what was called "stillborn," and I brought it to life. In January, 1895, I made forty visits to Mr. Duncan; in February I made thirty-five visits; and twenty-five in March. The usual charge for such visits was five dollars each, and that is what I charged, making a total of $500. Mr. Duncan never paid me for the services rendered. I made a demand on him to pay, and he didn't make any satisfactory answer. He never in his lifetime refused to pay, or denied the bill. He promised to pay it. He told me, just as soon as he was strong enough, and able to think the matter over, he would pay me handsomely for the services I had rendered him, and for me to make out a bill for Mrs. Duncan's confinement and the ferry charges, and he would pay that at once, and just as soon as he was able to be around he would attend to his part of it. He said that he appreciated the fact, or asked me to make out a bill for the whole amount, and I told him I would leave it to his own judgment as to the services for him; and he stated he appreciated the fact that I refused to make out a bill at this time to him for the services. On the 26th of March, 1895, he asked me for his bill. I said: "I rather not make out a bill to you; rather leave it to your own judgment to pay what you think best." And he said he appreciated and knew what position I was in, having just come up here,
and he said then, “What do you usually charge in such cases?" I said, “Twenty-five dollars;" and he then said, “Well, you make out your bill for twenty-five dollars, continement charges for Mrs. Duncan, and the ferry charges to here, for this time, and as soon as I get well I will pay you for myself.” And he said, “We can never suitably remunerate you in money for this service.” He expressed himself as fully satisfied,-highly satisfied.' (2) The court erred in refusing to give, at the request of the defendant, the following instruction, to wit: 'Gentlemen of the jury, the defendant has introduced in evidence before you a receipt executed to Robert Duncan during his lifetime by the plaintiff, Dr. Leonhardt, date, March 26, 1895, reciting the receipt of payment in full to date. This receipt is prima facie evidence that all indebtedness of Robert Duncan to Dr. Leonhardt was paid; that nothing more was due from Robert Duncan on account of anything transpiring prior to March 26, 1895; and, before you can find for the plaintiff in this case, you must find that the presumption arising from the receipt is met and overcome by the preponderance of the evidence.''
Section 858, Rer. St., referred to in the opinion of the court, reads as follows: "In the courts of the United States no witness shall be excluded in any action on account of color, or in any civil action because he is a party to or interested in the issue tried: provided, that in actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the