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answered in the negative. For instance, the jury gave the categorical answer, "No," to this question: "Did defendant instruct plaintiff as to the proper manner of safely applying compound on a belt, while mounted upon a ladder, in proximity to a revolving shaft with set-screw couplings?” And another similar question was answered, “Not according to the evidence."
Other questions and answers to which appellant apparently attaches more importance are as follows: 1. “Q. What was the proximate cause of the accident and injury complained of by plaintiff? A. The proximate cause of the accident and injury lay in the fact that the boy was ordered to do a duty outside of his regular work, and was caught by the revolving shaft and set-screws." 2. "Q. Was plaintiff's injury due to the failure of defendant to warn or instruct plaintiff as to the danger of his employment ? A. It seems to be due to the defendant's failure to warn plaintiff and the fact that he was doing something outside of his regular work.” 3. “Q. Was the accident and injury complained of caused by the negligence of the defendant in furnishing a defective ladder for the use of plaintiff? A. We believe the ladder should have had spikes and hooks." 4. “Q. Was the accident and injury complained of caused by the negligence of defendant in operating the shafting and coupling described in the amended complaint with projecting screws ? A. We so believe." As to the foregoing, it may be said generally that, considering the number and character of the questions submitted to the jury, it is surprising that the answers are not confusing and it is clear that, when properly construed, they are entirely consistent with the general verdict. No. 1 should not have been submitted and it should be disregarded, as it involved a question of law. “To permit the jury to return conclusions of law rather than statements of fact would defeat the manifest purpose of the statute. Such conclusions are to be disregarded. They cannot be considered in determining the sufficiency of the verdict." (Clementson, p. 116.) Again, it is quite apparent that the jurors were not accustomed to the refinements of the law, and being men, presumably, of average intelligence and disposed to look at a question from a practical common sense standpoint, they naturally concluded that various circumstances contributed to the injury and they
so expressed themselves. They very properly believed and substantially found that the fact “that the boy was ordered to do a duty outside of his regular employment,” that “he was caught upon a revolving shaft with set-screws,” and that “defendant's failure to warn plaintiff” should all be considered as important elements in determining the question of negligence. And the jurors were right in that. It is true that they did not make the distinction that is pointed out by Mr. Justice Henshaw, in Merrill v. Los Angeles Gas & Elec. Co., 158 Cal. 503, [139 Am. St. Rep. 134, 31 L. R. A. (N. S.) 559, 111 Pac. 536), between “the proximate cause of the law” and “the proximate cause of the logician” or “the proximate cause in fact." As said therein: “Moreover, the proximate cause of the law is not the proximate cause of the logician, nor even always in strictness the proximate cause in fact, and a jury may easily be confused and misled by over-niceties in these abstractions." The jury is not expected or required to make these fine distinctions. They are often difficult enough for the courts. Probably, the responsibility of defendant for the injury is legally and primarily due to its failure to warn plaintiff of his danger but there would have been no liability, of course, if no injury had occurred, and the jury were justified in finding that there would have been no injury had it not been for the other circumstances hereinbefore stated. The intimate relation of these various facts and concepts is too apparent to require further comment. The situation will occasion no embarrassment if we keep in view and apply the rule that “All presumptions are in favor of the general verdict for the plaintiff, which determines all issues in his favor, including the question of contributory negligence, where there is evidence to support it; and it must control, if the special verdict is not absolutely irreconcilable therewith." (Antonian v. Southern Pacific Co., 9 Cal. App. 732, (100 Pac. 877].)
The instructions seem to have covered every phase of the legal propositions involved in the case and we find in them no substantial error. The concluding clause of one, to which appellant objects, is as follows: “I charge you that, as to the degree of care to be exercised by the servant, you may consider the fact, if such be the fact, that such servant was acting under the direct order of his employer." This does not
imply that the plaintiff was relieved of the duty to exercise care if he was acting under the direction of his employer. The circumstance of the order given by the foreman was a very important consideration, as we have already seen, and it had a just and legal bearing upon the degree of care required of the servant and it was proper for the court to so instruct the jury. “The fact that the servant, at the time he was injured, was complying with a direct, specific, personal order of his master, or his master's representative, has, it is well settled, a material bearing upon the question whether he can hold the master responsible. Broadly speaking, the evidential significance of this fact will be found to be simply this: That as it goes to show that the servant's ignorance of the risk to which his injury was due is excusable, or that his . action was not entirely voluntary, it tends to negative the availability of the various defenses which are essentially dependent upon proof that the servant voluntarily encountered a danger which was, or ought to have been, comprehended by him.” (Labatt on Master and Servant, sec. 433.)
“It is quite obvious that the fact that the servant has been ordered into a position of danger by his master or superior is an element to be considered in determining whether he has exercised ordinary care." (Thompson on Negligence, sec. 5379. See, also, Labatt, sec. 439, and 26 Cyc., pp. 1221, 1245 and 1272.)
Objection is also made to the following instruction: “If you find that the task at which the plaintiff was working when the accident occurred was, under all the circumstances of the case, one of special danger, then I charge you that such knowledge of danger as plaintiff may have acquired at the usual tasks of his employment does not necessarily raise the presumption that he knew of such special danger. A servant directed to undertake work outside of that which he is engaged to do, is not presumed to be aware of its peculiar risks, and therefore if the master does not fully explain them to the servant before putting him at such new work, the servant is entitled to assume that it has no greater risk than those which attach to his regular work." This manifestly does not assume that there was any special danger as the instruction is hypothetical in that respect. It does not assume that plaintiff's only source of knowledge was that acquired from his usual tasks
nor does it imply that the employer was called upon to fully explain the danger regardless of any knowledge that the plaintiff may have had. As pointed out by respondent, the meaning conveyed was “that the plaintiff cannot be charged with knowledge of special dangers outside of his regular employment, by reason of knowledge acquired at his usual tasks, and that if the master does not explain such special dangers to him, he is entitled to assume thar there are no greater risks attached to such special dangers than those which attach to his regular work.” If there was any likelihood that the jury would misconstrue the instruction in the manner suggested by appellant, it was completely obviated by reason of other clear directions as to the duty of plaintiff to use whatever knowledge he may have derived from any source.
Some criticism is made of two or three other instructions but we do not think it merits special attention. It may be said, also, that, after an examination of the rulings complained of as to the admissibility of evidence, it appears reasonably certain that if any of them was erroneous the result could not possibly have been affected thereby to the prejudice of appellant.
We think no sufficient reasons exist for interference with the action of the lower court and the judgment and order are therefore affirmed.
Chipman, P. J., and Hart, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on January 28, 1913, and the following opinion then rendered thereon:
BURNETT, J.-In its petition for rehearing, appellant manifests a degree of disappointment that in the original opinion we failed to discuss specifically some of the assignments of error as to the instructions. The constraint of custom and propriety as to the elaboration of judicial opinions, no doubt, is quite obvious to the learned counsel, and we think it is hardly necessary to assure them that we examined, as carefully as we could, not only the exhaustive briefs but the whole of the transcript in the case. Our conclusion, however, was and is that, viewing the entire record, we cannot say that any prejudicial error was committed.
This much we have added in consequence of the respectful attitude of appellant and the admirable presentation, both in matter and method, by appellant's counsel of their contentions.
The petition is denied.
Chipman, P. J., and Hart, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 28, 1913.
[Civ. No. 1113. First Appellate District. - December 30, 1912.] FRESNO PLANING MILL COMPANY (a Corporation),
Respondent, V. S. E. MANNING and J. MANNING,
Appellants. MECHANICS' LIENS—PENDENCY OF FORECLOSURE—PERSONAL ACTION OF
LIEN-HOLDER AGAINST CONTRACTORS PLEA IN ABATEMENT OF PRIOR ACTION PENDING-STRIKING OUT PREJUDICIAL ERROR.—During the pendency of an action for the foreclosure of mechanics' liens to which a lien claimant and the contractors were both parties, where such lien claimant brought an independent personal action to obtain judgment against the contractors, the contractors properly pleaded the pendency of such foreclosure suit to which they were both parties, in abatement of such independent action, and it was prejudicial error for the court in which such action was brought
to strike out such plea in abatement. [D.—PARTIES TO FORECLOSURE—MATERIALMEN— ELECTION OF ACTION
CONTRACTOR.—Under the provisions of section 1197 of the Code of Civil Procedure, any person to whom a debt is due for materials furnished for the erection of a building may, in addition to an action to foreclose a lien against the building and its owner, maintain a personal action to recover such debt against the person liable therefor. But, under the established and approved practice in this state, the person contracting for such materials may be made a party defendant with the owner of the building in an action to foreclose a mechanic's lien, in which a personal judgment may be rendered against the contractor, even though the lien may be denied. The
contractor is a proper defendant, to avoid a multiplicity of suits. [D.-POLICY OF LAW AGAINST DIFFERENT SUITS UPON SAME SUBJECT
MATTER.—It is not the policy of the law to permit different suits to be instituted and pending between the parties concerning the