niiiiiBiJil jijlli fijiiiii^ 1 ■ HBl • ■ 1 ; J ■ 5 ■ : 1 iiiillliliiilililliiliiliiiiiiii '\\ lljljiiliiiiiiliiliiiiliiiiiii v2. THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW BRICKWOOD'S SACKETT ON INSTRUCTIONS TO JURIES CONTAINING A TREATISE ON Jury Trials and Appeals WITH FORMS OF APPROVED INSTRUCTIONS AND CHARGES ANNOTATED ALSO ERRONEOUS INSTRUCTIONS WITH COMMENT OF THE COURT IN CONDEMNING THEM THREE VOLUMES VOL. II THIRD EDITION BY ALBERT W. BRICKWOOD, LL. B. OF THE CHICAGO BAR CHICAGO CALLAGHAN & COMPANY 1908 COPYRIGHT 1888 By OALLAGHAN & COMPANY COPYRIGHT 1908 BY OALLAGHAN & COMPANY T VOLUME II 6 ihjri CHAPTER LXII. NEGLIGENCE— IN GENERAL. See Erroneous Instructions, same chapter head. Vol. III. § 1336. Neg-ligence defined. § 1337. Ordinary care defined— Rea- sonable care. § 1338. Elements necessary for a recovery. § 1339. More accident not action- able. § 1340. Actionable injury must be the result of negligence. § 1341. Injury the result of negli- gence and accident. § 1342. The negligence charged must be the proximate cause. § 1343. Question of negligence one of fact for the jury. § 1344. Instructions referring jury to pleadings as to negli- gence alleged. § 1345. Recovery on proof of allega- tions contained in one or more counts of declaration. § 1346. Circumstantial evidence sup- porting plaintiff's theory must be inconsistent with any other conclusion. 5 1?A7. Burden of proof. § 1348. Proof may be made by de- fendant's own witnesses. § 1349. Coroner's verdict not evi- dence of negligence. § 1350. View by jury of scene of accident as evidence of negligence. § 1351. Contributory negligence de- fined. § 1352. Effect of contributory negli- gence. § 1353. Ordinary care of plaintiff defined. 8 13.'4. Contributory negligence of fliildren. § 1355. Same subject — Failure of in- fant plaintiff to use ade- quate care. § 1356. Intoxication as contributory negligence. § 1357. Defective hearing. § 1358. Contributory negligence — Effect of terror in sudden emergency. § 1359. Danger must be impending for contributory negligence to be a defense. § 1360. Injury after defendant saw danger in time to avert — Willful and wanton de- fined. § 1361. Burden of proof as to con- tributory negligence — States holding burden is on plaintiff to prove free- dom from contributory negligence. § 1362. Same subject— States hold- ing burden of proof is on defendant to establish plaintiff's contributory neg- ligence. § 1363. Imputed negligence — Rule in Ohio. § 1364. Same subject — Negligence as regards children. § 1365. Parties to action for negli- gence — Several defendants. § 1366. Corporation has same status as individual. 5 1367. Contractor's negligence. § 1368. Effect of release of cause of action by plaintiff. § 1369. Release obtained by fraud or misrepresentation. 8 1336. Negligence Defined, (a) ** Negligence," as that term is xiHdl in lliis fliari^M' means the failure to exerci.se ordinaiy care.^ (h) Ncfiifli/^ence is a failuie to exercise that degree of care and 1— Rnpld T. Ry, Co. v. Miller, (7611; Southern K. Ry. Co. v. Sage — Tox. riv. Ai.p. — . 85 S. W. 4!n: — Tpx. Civ. App. — , 80 S. W. 10.S8 Oonnan'fl Adm'r v. Lnulsvlllo Rv. (1039); Nesbit v. Crosby, 74 Conn. Co., 24 Ky. L. 1938, 72 S. W. 760 554. 51 Atl. 550 (552). 884 § 1336.] NEGLIGENCE— IN GENERAL. 885 diligence that an ordinarily prudent person would exercise in his own affairs under like or similar circumstances.^ (c) Negligence consists in doing something, which a person of ordinary iDrudenee and care would not have done, or would not have omitted to do, under like or similar circumstances.^ (d) Negligence is the failure to do what a prudent person would ordinarily have done under the circumstances of the situation, or doing what such person, under the existing cii'cumstances, would not have done. The duty is indicated and measured by the exigencies of the occasion.* (e) Negligence is failure in the matter of care under the circum- stances. Every man is bound to be careful that others take no harm by his conduct or his actions. The measure of his duty is the circumstances of the case. "What may be absolutely necessary under some circumstances to protect others from harm may not be necessary under other circumstances. Negligence, as I have said, is the lack of care under the circumstances. It is the doing of something which, 2 — "It is said that this does not cover acts of commission as well as acts of omission, and that in this respect it is faulty and mis- leading-. But we think that it covers both. Failure to exercise care and diligence that an ordi- narily prudent person would in- volves either or both." German Ins. Co. V. C. & N. W. Ry. Co., 128 Iowa 386, 104 N. TV., 361 (363). 3— Galloway v. Chicago, R. I. «& P. Ry. Co., 87 Iowa 458, 54 N. W. 447 (450). "Appellant cites Pennsylvania Co. V. Marion, 104 Ind. 239, 3 N. E. 874; and contends that this instruc- tion makes the negligence of the plaintiff to depend on the question whether a person of ordinary pru- dence would have done the same thing. As said in the case cited, 'the formula used is that fre- quently adopted in attempting to define "negligence." ' It is there said: 'Whether the plaintiff was negligent or not depended upon the particular facts admitted or satis- factorily proved in the case.' This instruction does not ignore the facts, but makes them the very g-roundwork of the inquiry. True, 'the most prudent men are not always exempt from carelessness, and. when actually negligent, the law charges the same consequences to their negligent conduct as to similar conduct in others.' But there is no better standard by which to measure the acts of men, as to negligence, than to ask what persons or ordinary prudence and care would have done under the same circumstances; and such is the rule of this instruction." 4— Houston & T. C. R. Co. v. Milam, — Tex. Civ. App. — , 58 S. W. 735 (736). "We believe the usual definition of negligence, as often approved by the courts of this state, would be less subject to criticism. It is the failure to do what a person of ordinary prudence would do under the circumstances, or doing what a person of ordinary pru- dence would not do under the cir- cumstances. The care required is ordinary care; that is, such care as a person of ordinary prudence would exercise under the circum- stances. The failure to exercise such care is negligence. Austin N. W. R. Co. V. Beatty, 73 Tex. 596, 11 S. W. 858; City of Austin v. Ritz, 72 Tex. 402, 9 S. W. 8S4; St. L. A. & T. R. Co. V. Finley, 79 Tex. 88, 15 S. W. 266; Houston & T. C. R. Co. V. Smith, 77 Tex. 181, 13 S. W. 972; Gulf, C. & S. P. R. Co. V. Hodges, 76 Tex. 92, 31 S. W. 64; Houston & T. R. Co. V. Oram, 49 Tex. 341. The case last cited above is authority for the charge given in this case, as is the case of McDonald v. R. Co., 86 Tex. 11, 22 S. W. 939. See also Martin v. R. Co., 87 Tex. 119, 26 S. W. 1052; Texas & P. R. Co. V. Gorman. 2 Tex. Civ. App. 146, 21 S. W. 158; and Houston & G. N. R. R. Co. v. Randall, 50 Tex. 254." 8^ FORMS OF INSTRUCTIONS. [§ 1.^36. under the ciremnstanees and in view of his duty to endeavor to protect other people from hanii by reason of his conduct, a reason- able aixd prudent man of ordinary common sense, would not do. It is the failure to do something which a man of good judgment and sound common sense would do, in view of the circumstances, out of a desire to perfonn his duty to protect other people from harm by reason of his actions.'^ (f) The court instructs the jury that negligence is the omission to do something which a reasonable and prudent man, guided by those considerations which ordinarily regulate the conduct and af- fairs, would do, or doing something which a reasonable man would not do under all the circumstances surrounding and characterizing, the particular case. And the jury in this case, taking this as the dehnilion of negligence, is to find from the facts and circumstances surrounding the transaction in question whether or not the defendant company has committed negligence; and if they so find, and further find that plaintiff was injured thereby, then the verdict should be for plaintiff.*^ 5 — Foote v. American P. Co., 201 Pa. St. 510, 51 Atl. 364. 6— Kennedy v. So. Ry. Co., 59 S. C. 535, 38 S. E. 169 (170). In Bodie v. Charleston & W. C. Ry. Co., 61 S. C. 468, 39 S. E. 715, 716, the following charge was given: "Negligence simply means want of due care. That is a very short definition. If you weigh each word, you will find that that con- tains the whole doctrine, — want of duo care; not simply want of care but want of due care. From its very nature, negligence may con- sist in the doing something which should not have been done. Negli- gence may also consist in leaving updone that which ought to have bein done. It may, therefore, be II fault of omission as well as a fault of commission. (It is im- pcsslble for the court to furnish a jury with a hard and fast measure of care, the presence of which, or the excrci.se of which, would drive away the idea of nc-gligence, the absence of which would moan the presence of negll- gencf. There Is no such hard and fast rule which can be applied by a jury like a foot rule or a bushel moasuro; but thoro Is a general pririflplo which underlies the doc- trine of negligence, and shows sufllflently clearly the mc.isure of care propor in each particular caHf. and It Is this: The greater the probability of danger in the particular circumstances, the greater is the required degree of care, because the measure of care naturally varies in the different circumstances. For example a man cutting wood with an ax must exercise a proper amount of precaution to guard against other people that may be near him; but a man who is blasting rock with dynamite, since there is much greater danger in handling that explosive than in holding an ax, is required to exercise a much greater degree of care. Due care in handling an ax in cutting wood would not be Sufficient measure of care in handling dynamite and blasting rock. But this shows you that the jury in each particular case has to establish from the testimony in the case exactly the measure of care which should have been exercised under the circum- stances, and it is just that amount of care which would or should have been exercised by a man of ordinary intelligence and prudence. Your common sense and intelli- gence will guide you, in deciding by the testimony), in the case what amount of care should have been exercised by the railway comptmy in the circumstances detailed in the testimony, and also will show you what amount of care should have boon exercised by , the plaintiff, undor the circum- stances detiiilod. when you are con- sidering the subject of contribu- § 1336.] NEGLIGENCE— IN GENERAL. 887 (g) Negligence, as used in the insti-uctions, means, when ap- plied to plaintiff, a failure to exercise ordinaiy care to protect him- self from injury; and "ordinary care" means such care as an or- dinarily prudent man would exercise to protect himself from injuiy under the same or similar circumstances.'^ (h) Negligence is defined to be the want of ordinary care; that is, such care as an ordinarily prudent person would exercise under like circumstances. There is no precise definition of ordinai'y care, [but it may be said that it is such care as an ordinarily prudent person would exercise under like circumstances, and should be pro- portioned to the danger jyid peril reasonably to be apprehended from a lack of proper prudence. This rule applies alike to both parties to this action, and may be used in determining whether either was negligent. (i) It must also appear from the evidence that the plaintiff did not in any way contribute to the happening of the accident in ques- tion by any negligence on his part; that is, by his own want of ordinary care. The plaintiff, on his part, was under obligation to use ordinary care to prevent injuiy when passing over any sidewalk; and if he failed so to do, and his failure in any way contributed to the happening of the accident in question, then he cannot recover herein. The evidence shows without dispute that he was blind, and this fact should be considered by you in determining what ordinary care on his part would require when he was attempting to pass over one of the sidewalks of this city.^ tory neg-ligence; and I repeat It Is sets of circumstances, and that just that degree of care which a the care or caution required in man of ordinary intelligence, com- one case may be greater or less mon sense and prudence should than the care or caution required have exercised under the same or in another; but the jury (were similar circumstances; not abso- plainly instructed that in any par- lute care, not the utmost care to ticular case or set of circum- guard against a possible danger, stances the law enjoined the duty but only reasonable care, due of observing the care due under care, that amount of precaution such circumstances, and the court proper to guard against the prob- did not instruct the jury that in able danger." any case the law required a higher On appeal, the court said: degree of care than due care." "The exception is to that portion 7 — L. & N. R. Co. v. Hiltner, 22 of the charge above which is with- Ky. Law 1141, 60 S. W. 2 (4); Gulf, in the brackets, and the specific C & S. F. Ry. Co. v. Hays, — errors assigned are: (1) That the Tex. Civ. App. — , 89 S. W. 29 (32). jury were instructed that in some 8 — Hill v. City of Glenwood, 124 cases a higher degree of care than Iowa 479. 100 N. W. 522 C524). due care is necessary to exempt "It is too well established to re- from liability; and (2) the charge quire argument or citation of left to the jury the legal question, authority that the care which the what degree of care was necessary city is bound to exercise in the in this case. We do not think the maintenance of its streets is ordi- charge is amenable to either objec- nary and reasonable care, the care tion. The learned circuit judge, which ordinarily marks the con- by his language and illustration, duct of a person of average pru- merely meant to show the jury donee and foresight. So. too, it that 'negligence' is a relative term is equally well settled that the when applied to different cases or care which a person using the 888 FORMS OF INSTRUCTIONS. [§ 1337. § 1337. Ordinary Care Defined— Reasonable Care, (a) The court instructs the jury, that ordinary care depends upon the circumstances of each particular case, and is such care as a person of ordmai-y pru- dence and skill would usually exercise under the same or similar cir- (b) The court instructs the jury that ordinary care, as mentioned in these instructions, is the degree of care which an ordinarily prudent person situated as the defendant was, as shown by the evidence, before and at the time of the injury, would usually exercise for his own safety.!'^ „ . :, (c) Ordinary care means the degTee of care usually exercised by ordinarily careful and prudent persons under the same or similar circumstances. Negligence is the failure to exercise ordinary care.^^ street is bound to exercise on his own part to discover danger and avoid accident and injury is of precisely the same character, the ordinary and reasonable care ot a person of average prudence and forethought. The streets are for the use of the general public with- out discrimination; for the weak, the lame, the halt and the blind, as well as for those, possessing perfect health, strength and vision. The law casts upon one no greater burden of care than upon the other. It is true, however, that in determining what is rea- sonable or ordinary care we must look to the circumstances _ and surroun'^lings of each particular case. As said by us in Graham V. Oxford, 105 Iowa 708, 75 N. W. 474: 'There is no fixed rule for deter- mining what is ordinary care ap- plicable to all cases, but each case must be determined according to its own facts.' In the case before us the plaintiff's blindness is sim- ply one of the facts which the jury must give consideration in finding whether he did or did not act with the care which a reasonably prudent man would ordinarily exercise when burdened by such Infirmity. In other words, the measures which a traveller upon the street must employ for his own protection depend upon the nature and extent of the peril to which he knows, or In the exercise of leasonable prudence ought to know, he is expo.sed. The greater and more Imminent the risk, the more he Is required to look out for and guard ngalnst injury to him- Sflf; but the care thus exercised Is neither more nor l^ss th.'in ordi- nnry care — the care which men of ordinary prudence and experience may reasonably be expected to exercise under like circumstances. See cases cited in 21 A. & E. Enc. Law (2d Ed.) 465, note 1. In the case at bar the plaintiff was right- fully upon the street, and if he was injured by reason of the negligence of the city, and without contributory negligence on his part, he was entitled to a verdict. In determining whether he did exercise due care it was proper for the jury, as we have already in- dicated, to consider his blindness, and in view of that condition, and all the surrounding facts and cir- cumstances, find whether he exer- cised ordinary care and prudence. If he did, he was not guilty of contributory negligence. This view of the law seems fo be fairly embodied in the instructions to which exception is taken." 9— So. K. Ry. Co. v. Sage, — Tex. Civ. App. — , 80 S. W. 1038 (1039) ; Copeland v. Wabash R. Co. 175 Mo. 650, 75 S. W. 106 (108); Rapid T. Co. v. Miller, — Tex. Civ. App. — , 85 S. W. 439; Cronin v. Delavan, 50 Wis. 375, 7 N. W. 249. 10— C. C. Ry. Co. V. O'Donnell, 208 111. 267 (273), 70 N. E. 294 and 477. "The instruction required due care before and at the time of the injury, and, we think, vas broad enough, and did not assume as is contended, that the deceased was in the exercise of due care at any time." 11 — Gorman Adm'r. v. Louisville RV. Co., 24 Ky. L. 1938, 72 S. W. 760 (761); Louisville & N. Ry. Co. V. Lucas, 30 Ky. L. 359, 98 S. W. 308, wh'-re a somewhat similar instruction was approved. The court, in the first case, said: "It might bo impossible to lay § 1338.] NEGLIGENCE— IN GENERAL. 889 (d) Reasonable care means that degree of care which an oi'dina- rily prudent and careful person of the same age would exercise under similar circumstances and surroundings.^- § 1338. Elements Necessary for a Recovery, (a) The jury are instructed that the plaintiff cannot recover in this case against the defendant company unless they find that she had a preponderance of the evidence supporting the propositions : First. That the plaintiff was not at the time of the ac- cident guilty of any failure to exercise ordinary care for her own safety, which approximately contributed to her injury. Second. That the defendant company was guilty of neg- ligence in the manner charged in the declaration. Third. That such negligence was the proximate direct cause of the plaintiff's injuries in question, if any. And if you find from the evidence that the plaintiff has failed to sustain these propositions, as stated, or that she has failed to sustain any one of them she cannot recover against said defendant company, and you should find the defendant not guilty.^^ down a general rule that would aptly and minutely define the care to be exercised under e^'ery con- ceivable state of case. Nor would it be wise to attempt it. "^^hat would amount to ordinary care in a sparsely settled, unfrequented part of a city might be gross negligence in a much used down- town thoroughfare. And what would be ordinary care toward an adult under similar circumstances, might be criminal negligence to- ward an infant of very tender years. Ordinarily careful and prudent persons regulate their conduct by the difference in cir- cumstances surrounding the act. This is generally knov.'n and recofrnized of all people. That is what makes it ordinary care. So, when the jury were instructed that the motorman must i-egulate his conduct in operating the car by the standard of conduct and caij- tion usually exercised by ordi- narily careful and prudent persons in operating electric cars in such neighborhoods where small child- ren were likely to be upon the street his full legal duty was stated." 12— Economy L. & P. Co. v. Hiller. 113 Til. App. 105, aff'd 203 111. 518, 68 N. E. 72. "The objof'tion to this instru-^- tion is that it omits to tell the jury that in determining the de- gree of care which the appellee was required to use, the jury should consider not only the age but also the experience and dis- cretion of appellee. In Weick v. Lander, 75 111. 93, our Supreme Court say: 'It was proper for the jury in passing on the degree of care required of the plaintiff to take into consideration his age and experience.' And in Chicas:o V. Keefe, 114 111. 222, 2 N. E. 267, the instruction on this point was that the intestate (a child ten years old) should exercise such degree of care 'as from his age and intelligence, under the circum- stances in evidence, was required.' The court sustain the instructioii and while criticising its phraseo- logy say: 'The circumstances are always to be taken into consider- ation in such cases and if intestate exercised such care as under the circumstances might be expected from one of his age and intelli- gence, it was sufficient.* And again in I. C. R. R. Co. v. Slater. 129 111. 91. 21 N. E. 575. our Su-. preme Court Review and approve the foregoing authorities and say: 'The.se decisions are in harmony with the decisions of other states on the same subject and but recognize the rule laid down by approved text writers on nes-1i- gence:' citing Shearman & Red- feld on N^eo-iieencp, sec. 49: Whar- ton on Negliarence, sec. 309." 13— W. C. 3t. R. R. Co. V. Pet- 890 FORMS OF INSTRUCTIONS. [§ 1339. (b) The jury are instructed that, in order to entitle the plain- tiff to recover in this case from the defendant, two things must concur and appear from a preponderance of the evidence: first, that such defendant was guilty of negligence which contributed to the injury complained of; and secondly, that the plaintiff exercised rea- sonable and ordinai-y care for her own safety. And if the plaintiff fails to establish both of these essentials by a preponderance of the e\-idence, she cannot recover. The burden of proving negligence rests with the party alleging it, and where a party charges negligence on the part of any other as a cause of action, she must prove his negli- gence by a preponderance of the evidence.^* (e) The juiy are instructed that this is a suit brought to recover damages which it is alleged were caused the plaintiff by and through the negligence of the defendant company as set forth in plaintiff's declaration, or in some one or more of the counts thereof. (d) In order to a recovery of any damages in the case, it is re- quired that you should believe, from a fair and impartial considera- tion of all the evidence in the case, that the preponderance or greater weight of the evidence establishes first the fact that plaintiff suffered an injuiy as stated in his declaration, and the extent thereof; second, that he himself was at the time and place of said injury exercising reasonable and ordinary care and caution for his own safety; and third, that the injury was the direct and proximate result of the negligence of the defendant company at said time and place as same is set out in the declaration, or in some one or more of the counts thereof.^'' § 1339. Mere Accident Not Actionable. The court instructs the jury that, if you believe, from the evidence, that the injuiy to the plaintiff was the result of a mere accident, and neither the de- fendant nor the plaintiff were the cause thereof, you should find the defendant not guilty.^** § 1340. Actionable Injury Must Be the Result of Negligence. The Jury are further instructed that if the evidence in this case fails to ters, on 111. App. 479 (481), aff' d the exercise of care on the plain- 196 111. 298, 63 N. E. 662. tiff's part to the 'time' of the in- 14 — N. C. St. R. R. Co. V. Boyd, jury, and cases are cited which 1!jC 111. 416 (418), 40 N. E. 955, aff'g seem to support the contention. A 57 111. Ar)p. r<35. careful reading' of these cases, "In these instructions, the rule however, as we think, shows the In regard to the burden of proof is contrary. In L. S. & M. S. Ry. fully laid down." Co. v. Hessions, 150 111. 546-555. 15— Penn. Co. V. Reldy, 99 111. 37 N. E. 905, this objection to a App. 477 f47S), nff'd 198 111. 9, 64 similar instr\iction was held to be N. R. 608. untenable. To a like effect: L.. S. "This Instruction Is criticised as & M. S. Ry. Co. v. Johnson, 135 bomK mlHlr-Mdiiifir because it as- 111. 641-53, 26 N. E. 510; McNulta HumoH the d'-fendant was nepll- v. Lo'-kridere. 137 111. 270-87, 27 N. Kent. We think the eritlclsm not E. 452, 31 Am. St. Rep. 362; C. & jfood. The Instruct Ion as we read A. R. R. Co. v. Fisher, 141 111. It makes no such assumption. It 614-25. 31 N. E. 406." Is niso snld that the Instruction 16— Webster Mfe:. Co. V. Nisbett, Ik objectionahlo because it limits 87 111. App. 551 (553). § 1341.] NEGLIGENCE— IN GENERAL. 891 disclose what was the cause of the explosion of the boiler of the locomotive, which explosion caused the death of A. B., and if from a careful consideration of all the evidence in this case the cause of such explosion is unknown, and if the plaintiff fails to prove, by a preponderance of the evidence, that the defendant was negligent as is charged in the plaintiff's declaration, then the plaintiff cannot re- cover in this case, and you should find the issues for the defendant.^'' § 1341. Injury the Result of Negligence and Accident. The court instructs the juiy, as a matter of law that if a person receives an injury as the combined result of an accident and of negligence on the part of another, and the accident would not have occurred but for such negligence, and the danger could not have been foreseen or avoided by the exercise of reasonable care and prudence, on the part of the person injured, then the person guilty of the negligence will be liable for the injuiy received. ^^ § 1342. The Negligence Charged Must Be the Proximate Cause, (a) The court instructs the jury, that the rule of law is, that every person must be held liable for all of those consequences which flow naturally and directly from this act, or which might have been fore- seen and reasonably expected as the result of his conduct, but not for those consequences which do not flow naturally and directly from his acts, or which he could not have foreseen or reasonably have antici- pated as the result of his conduct.'^^ (b) If you believe, from the evidence, that the defendant was guilty of the negligence or carelessness charged in the declaration, and that the injury complained of was the natural consequence of such negligence or carelessness, and such as might have been foreseen and reasonably anticipated as the result of such negligence or care- lessness, then such carelessness or negligence should be regarded as the approximate cause of the injuiy. (c) You are instructed, that although you may believe, from the evidence, that the injury complained of was occasioned by the acts of the defendant, still, if you further believe, from the evidence, that such injury was not the natural result of the acts of the defendant and could not have been foreseen or reasonably expected to result from the conduct of the defendant, then the defendant would not be liable. (d) You are instructed, that an act is not to be deemed the proxi- mate cause of an injury, unless the injury was such a consequence of the act as, under the surrounding circumstances of the case, might 17—1. C. R. R. Co. v. Prickett, Parsons on Cent., 456; Rigby v. 210 111. 140 (148). 71 N. E. 435. Hewitt. 5 Exch. 240; Fent v. T. IS— Aurora v. Pulfer. 56 111. 270; P. & W. Rd. Co., 59 III. 349; Brash- Norton V. Volzke, 158 111. 402, 41 berg- v. Mil. etc., Rd. Co., 50 N. E. 1085, 49 Am. St. 167, aft'g Wis. 231. 6 N. W. 821; Tex.is & 54 111. App. 545. P. Ry. Co. v. Short. — Tex. CiV, 19— Coolev on Torts (3d Ed.) App. — , 58 S. W. 56 (57). 125; Wharton on Neg., § 74-78; 2 892 FORMS OF INSTRUCTIONS. [§ 1343. and ought to have been foreseen or anticipated by an ordinarily rea* sonable and prudent man, as reasonably likely to flow from the act.-" (e) When we speak of the proximate cause of an injuiy, we mean not only the natural cause of an injury, but also such a case as ought under the attending circumstances, to be reasonably expected, by a person of ordinary intelligence and prudence, to produce injury to another. Or, in other Avords, ought an injury to another, in the light of the attending circumstances, to have reasonably been fore- seen as a natural result of the act or omission complained of ^-^ § 1343. Question of Negligence One of Fact for the Jury, (a) The court instructs the jury that the questions involved herein, as alleged in the plaintiff's declaration, of negligence on the part of the defendant, if any, and the exercise of reasonable care on the part of the plaintiff, if any, are what are known as questions of fact, which is the duty and province of the jury to determine under the law and the evidence in the case.^^ (b) Whether there was or was not negligence, or want of due care, on the part of either the defendant or plaintiff, or both, is to be determined by you, in consideration of all the facts, the situation and surroundings at the time of the accident, tested by your judg- ment as practical men. The court cannot lay down any legal rules by which to resolve the question.-"* (c) The court instructs the juiy that if, immediately after the injury plaintiff said that nobody but himself was to blame, or words to that effect, this does not of itself make it so; but the jury should consider all the facts and circumstances of the case, and those sur- rounding plaintiff at the time he said what he did say, and from all the facts and circumstances of the ease in evidence the jury must de- 20— Hoag V. L. S. & M. S. Rd. law and the evidence, and is with- Co.. 85 Penn. St. 293; L. N. A. & in the rule stated in W. C. St. C. R. Co. V. Wood, 113 Ind. 544, R. R. Co. v. Schultz. 217 III. 322, 14 N. E. 572 (585). 75 N. E. 495, where at page 325 21— dwell v. Skobis, 126 Wis. 308, it was said: 'In framing instruc- 105 N. W. 783. tions it is not ordinarily required 22— C. & J. Elec. Ry. Co. v. that any one instruction should Pafton. 219 111. 216. 76 N. E. 381. state all the law of a case, but "It l.s rontended that this in- if an instruction is correct so far struftlon is dofortive. In thnt it as it goes, and does not assume attr-mpt.s to summarize the facts to point out all the elements of necf'H.sary for the plaintiff to proof necessarv to a recovery and prove in order to entitle her to direct a verdict, it may be sup- recover hut does not require her plemented by other instructions. to prove she wan lnjct to the matter of making, reasonable care to conclude wheth- promulgating and enforcing neces- er rules were necessary, or in the sary rules, was negligent." second place, if they were, whether 22— Gulf, C. & S. F. Ry. Co. v. the rules thus made were proper Newman, 27 Tex. Civ. App. 77, 64 for the purpose for which they S. W. 790. were intended. When the question 2.3 — Taylor v. Wootan. 1 Tnd. is whether the case was one in App. 188, 27 N. E. 502 (504). 50 which rules ought to have been Am. St. Rep. 200. "it is argued made, the fact that other people that these in.structions wholly ig- or corporations engaged in the nore the question of contributory same business had or had not negligence, and are therefore er- foimd it necessary to make rules roneous. it is not necessary that Mvriu that subject is one that each instruction should contain might well be considered. But the the whole law of the case, or any fact that no such rules had been branch of the case, with the rec- 928 FORMS OF INSTRUCTIONS. [§ 1384. § 1384. Instruction of Minor by Master, (a) When the master employs a minor to perform work which is dangerous or hazardous to the person of such minor, it is the duty of the master or employer to explain to such minor the proper manner of performing such work, and also to explain to such minor the dangers and hazarels to his person incident to the performance of such work, and how to avoid ognized exceptions. They should all be considered together, and construed with reference to each other. If an instruction contains a complete statement of a prop- osition of law, applicable to the facts in a given case, it will be held good as part of a series con- taining the entire law of the case. The subject of contributory negli- gence was fully and clearly ex- pounded in other instructions, so this objection is not tenable. It is insisted, further, that these in- structions are vicious, in that they declare it to be an actionable wrong to employ an infant in a dangerous position, under any cir- cumstances. They do not bear any such an interpretation, and read in the light of the evidence, and in harmony with the other instructions, they correctly state the law. It should be kept in mind that the complaint proceeds upon two separate and distinct theories. In the first paragraph, the liability of appellants is pre- dicated upon their alleged negli- gence in the employment of the appellee in a hazardous undertak- ing, without giving him sufficient instructions to enable him to guard against the dangers; while in the second paragraph it is alleged that the appellee lacked the capacity to understand and appreciate the dangers incident to the service, and was therefore unfit for that kind of work, and the appellants were culpable for engaging him in such work, knowing his inca- pacity. The instructions complained of are pertinent to the latter theory. The law recognizes the right of a master to employ an Infnnt in hazardous occupation on condition that he shall furnish such infant with such information rflative to the perils of his situa- tion as will enable him to com- prfhond the dangers and under- stand how to avoid them. But it Is an actionnble wrong for a mas- tpr to expose In a hnzardous em- nloyment onp whom he knows to be lacking in capacity to under- stand and appreciate the dangers surrounding him, however much he may have been instructed. A contrary rule of law would be egregiously inhuman. In the case of .Pitts. C. & St. L. R. Co. V. Adams, 105 Ind. 151, 5 N. E. 187, the supreme court said upon this question: 'A neglect of such du- ties may, in a case, the servant being without contributory negli- gence, render the master liable, re- gardless of the fact that he may have exercised reasonable care in making and keeping the premises, machinery and appliances in a safe condition. The person em- ployed may be so young, inex- perienced and immature in judg- ment that no kind of warning and instruction would relieve the mas- ter from responsibility for injur- ies resulting from putting him at a hazardous and dangerous work.' The rule is stated thus in Shear. & R. Neg (4th Ed.> para. 219: 'And if he (the master) knows, or in the exercise of ordinary care and sagacity would have known, that the servant has not capacity enough to understand the warning and appreciate the danger, he will be liable for an injury which such servant may suffer in consequence, if continued at such work.' See also Coombs v. Cordage Co., 102 Mass. 572; Hamilton v. R. R. Co., 54 Tex. 556; Hayden- v. Manufactur- ing Co., 29 Conn. 548. It would be extr^ely difficult to formulate an arbitrary rule for the measure- ment of capacity in such cases; but it may be safely declared that, to justify a master in the employ- ment of an ignorant and inex- perienced infant in a hazardous calling, such infant should possess at least sufficient capacity to un- derstand the dangers of the situa- tion, and to appreciate the im- portance of heeding prudent warn- ings for his own safety. The question of the appellee's capacity in this case was properly sub- mitted to the jury, and the in- structions attacked by the ap- n;ellants were not erroneous." § 1384.] NEGLIGENCE— MASTER AND SERVANT. 929 such dangers unless the dangers and risks incident to such work are patent and obvious to persons of like age and intelligence of such minor.-* (b) The jury are further instructed that it is the duty of the master who sets a servant to work in a place of danger, or with dangerous machinery or appliances, to give him such notice and in- structions as is reasonably required by the youth, inexperience or want of capacity of the servant ; and, failing to do so, the master is liable for the damage suffered through such failure.-^ (c) It was the duty of the defendant, if he directed the plaintiff's intestate to manage the engine and turn on the steam, or allowed him to do so, in the course of his duties and if the defendant knew that he was young and inexperienced to instruct him as to its danger, and to use due care in directing his attention to the danger, if any, connected with the engine and valve. It would be negligence in the defendant, if he emploj-ed a boy 15 years old, without experi- ence, and put him to running an engine without giving him care- ful instructions how to use it; and if that was the proximate cause of the injui'y, you should answer the first issue *'Yes." (d) It was the duty of the defendant to exercise due care in the emploj-ment of the boy to do such work as that of managing danger- ous machineiy; that is, was the hiring of a 15 3-ear old boy to run a mill and manage machinery, without warning him of danger, if any, a thing that a prudent business man, under the same circumstances, would do ? Was it due care to put the boy in charge of the engine without warning? Would a reasonable and prudent man do it, and if not was that the proximate cause? That's the question.-® (e) If you find from the evidence that he was a minor at the time, but over fourteen years of age, and that when he applied for the position he stated that he knew the duties of a car coupler, and could discharge them, the defendant had the right to accept the statement as true, and act on it; and it would not be under any obligations to instruct the plaintiff as to the dangers attending the work, or as to how to avoid them, unless you should believe from the evidence that 24 — Wood V. Texas Cotton P. Co.. in.struction g-iven for plaintiff, is — Tex. Civ. App. — , 88 S. W. 496 erroneous, because it assumes the (497). "It is contended that the dangerous character of the em- duty tiQ warn an inexperienced ployment and the inexperience of minor is not limited, as a matter plaintiff. There is no conflict in of law, to only dangers which are the evidence about either of these not patent; that though the dan- propositions. They are undis- ger may be obvious and patent, puted." yet the master should warn and 26 — Marcus v. C. D. Loane & instruct how to avoid it. The rule Co., 133 N. C. 54. 45 S. E. 354 (355). of law applicable to the question, "The rule laid down by his honor we think, is clearly expressed by for measuring the defendant's our Pupreme Court in the case of duty, assuming that the jury the Tex. & Pac. Rv. Co. v. Brick, should find that the deceased was 83 Tex. 598. 20 S. "W. 511." employed to mnnas-e the machin- 25— Giebell v. Collins Co., 54 W. erv or to run the engine was Va. 518. 46 S. E. 569 (573). "It is clearly correct." urg-ed bv defendants that above 59 930 FORMS OP INSTRUCTIONS. [§1384. the circumstances were such as to require a prudent person, in the exercise of ordinary diligence, to give such instructions.-^ (f ) You are charged that it is the duty of the plaintiff to use or- dinary care in the performance of his duty, and of the employer to take proper precautions for the safety of the employes when working about machinery, especially when such person, through youth, in- experience or want of capacity, may be unable to appreciate or avoid the danger to which he is exposed. Therefore, if you believe from the evidence that the plaintiff was employed to work about machinery which was dangerous, and that defendant knew or should have known of the peril to which the plaintiff would be exposed, and did not give the plaintiff reasonable notice of such danger, and he, without negli- gence on his part, through inexperience failed to perceive or under- stand the risk, and the plaintiff was injured, you will find for the plaintiff; otheinvise find for the defendant. But the jury are charged that the fact that plaintiff was a minor does not relieve him from using ordinary care for his protection against risks incident to his emplojTnent. You are charged that ordinary care is such care that an ordinarily prudent person of the same age and capacity would ex- ercise under the same or similar circumstances.-^ (g) The court instructs the jurj' that if they find from the evi- dence that the defendant put the plaintiff to work upon the machine, and that the said machine was dangerous to operate, and that the plaintiff had no previous knowledge of the mode of operating said machine or of its dangerous character, and that the defendant did not warn the plaintiff of the dangers incidental to operating said machine, and because of said failure of the defendant to warn or inform the plaintiff of the dangerous character of said machine, and without fault on the part of the plaintiff, the plaintiff was hurt while operat- ing said machine, then the verdict of the jury should be for the plain- tiff. Provided the jury further find that the duty of operating the machine was excluded by the contract of employment made with the plaintiff's mother, if the jury shall find the same, and that the plain- tiff was a.t the time a boy of about 14 years of age, and that his father was dead. 29 (h) If you find that the place was dangerous, and that the de- fendant knew, or had reason to know, the peril to which plaintiff would be exposed, and did not give him sufficient or reasonable notice of it, and if he, without any negligence on his part, from youth or inexperience, failed to perceive or appreciate the danger, and was 27— Atlanta & W. P. R. Co. v. apppllee did not know how tn op- Smlth. 94 Oa. 107. 20 S. E. 763. ernte the machine, or that tho ac- 28 — Rerinp Mfer. Co. v. ■p^r-melnt, <^ido-nt to him was caused by any — Tf'x. — . 79 S. W. 869 fS7n. fnilure on the part of appellant 29— Nat'l R. & S. Co. v. ■R-ndv. to warn him of the dnn^erous 93 Md. 646, 49 Atl. 845 (Mfi). "The character of the machine. The appellnnt excepted specially tn the lenrned .iudg'e below overruled this KrnntinpT nf this praver for wnnt of exception, and his action in so lepnlly sufficient evidence that the doing meets our approval." § 1385.] NEGLIGENCE— MASTER AND SERVANT. 931 injured in consequence, the defendant is responsible to him, in an action, for such damages as you shall find he has sustained by reason of the injury under the charge. (i) A party entering upon a particular employment assumes the risk and perils usual thereto, when the usual and customary means to g-uard against accidents are adopted. If the servant with full knowledge of the danger, and understanding the increased risk oc- casioned thereby, consents to enter into the employment, then he voluntarily incurs the risk; and, if he suffers damages in consequence of injury received thereby, he will be without remedy. The fact that he remains in the master's employment under such circumstances, and with such knowledge, is what constitutes contributory negligence on his part. In such a case, the master, in permitting his machinery to be thus more than ordinarily dangerous is guilty of negligence; but the servant, with full knowledge thereof, by remaining, con- tributes thereto, and hence he cannot recover if he has such knowl- edge.^** § 1385. Right to Rely on Representations of Minor as to Experi- ence, (a) The court instructs the jury that the fact that the de- ceased was in the employ of the defendant company as coal loader did not prevent the defendant employing the deceased to work as a helper on the mine machine; and if the jury believe from the evi- dence that said B. H. approached the deceased while he Avas engaged at his work as coal loader, and inquired of him whether or not he had worked upon a mine machine as helper, and the deceased informed said H. that he had so worked, and upon that information the said H. believed it to be trae, and requested the deceased to assist him as a helper in running the machine in room ISTo. 4 to cut it out, and the deceased consented thereto without making any soi't of objection, then, although the deceased may have been but 17 years of age, if the juiy believe from the evidence that he was possessed of ordinary in- telligence, the said H. had the right to rely upon the representations of the deceased to him as to his experience and if, under such cir- cumstances, he entered upon the work of assisting to run said mine machine as a helper, the deceased was required to exercise ordinary care to avoid danger and injury to himself while so at work, and the said H. would not be required to instruct him as to his duties unless it appeared from the manner in which he undertook to perfoi-m and did perform the same that he was incapable of doing it for want of knowledge and information as to what the duties of a helper upon a mine machine were. (b) The court instructs the jury that if they believe from the evidence that the deceased represented to the said H. that he had worked upon a mine machine as a helper, and he consented to work °s such helper in running the machine to cut-out room No. 4, and pro- 30 — "These instructions were without error." King v. Ford R. Lbr. Co., 93 Mich. 172, 53 N. W. 10 (12). 932 FORMS OF INSTRUCTIONS. [§ 1386. ceeded to do such work, and if the said H. believed it to be true, and did not discover before his injury any want of capacity in the said B., and the jury believe from the evidence that the said B. was a person of ordinary sense, the defendant cannot be held for the negligence on the part of said B. under such circumstances.^^ § 1386. Employing Child without School Certificate in Illinois, (a) The court instrixets you that, if you believe from the evidence before you iu this case that the defendants were a fii'm and were carrj'ing on a factory or manufacturing establishment, as alleged in the plaintiff's declaration; that they employed the plaintiff to work in their said factoiy or manufacturing establishment by the day, or for a longer period of time than one day, without having been first furnished with a certificate fi^om the board of education or school directors of the school district in which the plaintiff then resided authonzing such employment : that the defendants after such em- ployment put and placed the plaintiff to work at the sawing machine mentioned in the plaintiff's declaration; that the plaintiff at the time of such employment was under the age of thirteen years; that the plaintiff was injured as alleged in the plaintiff's declaration while he was working under such employment at and with the said sawing machine, and in such factory or manufacturing establishment, and while he was under the age of thirteen years, and by reason of being so employed in such factory or manufacturing establishment; and that the plaintiff was at the time he was injured and immediately before, exercising all due and ordinary care (that is such reasonable care as a child of his age might reasonably be expected to exercise), for his own safety, then you will find the defendants guilty and as- sess the plaintiff's damages at such sum as you find from the evidence will be a just and reasonable compensation for his injuries. (b) The court instructs you that, if any person, firm or corpora- tion employs a child under the age of thirteen years by the day, or for any greater period of time than one day, in any factory or manu- facturing establishment, without a certificate issued by the board of education or the school dii'ectors of the school district where such child resides authorizing such employment, then such employment is an act of negligence on the part of such firm, person or corporation so employing such child, and if such child is hurt or injured in such factory or manufacturing establishment while it is so emploj'ed, or by reason of being so employed, and while such child is using due and ordinary care (that is, such reasonable care as a child of that age might reasonably be expected to exercise), for its own safety, then the person, fimn or corporation so employing such child is legally liable for such injury.^^ 31 — McVpy V. Rt. Clnir Co., 49 appellants that these instructions W. Vn. 412, ?.f^ R. K. e,iH p:lig-ence on the pnrt of nppel- App. 264 (268). "It is insisted by lants, if they find, from the evi- §1387.] NEGLIGENCE— MASTER AND SERVANT. 933 § 1387. Negligence of Master Not Presumed — Burden of Proof on Plaintiff. Negligence on the part of the defendant is not presumed. It is an affirmative fact, which plaintiff must prove by a preponder- ance of the evidence, and the negligent act or acts, proved, if any, must be such particular acts as are alleged in the plaintiff's com- plaint. The burden of proof is on the plaintiff, and if you find that the evidence bearing on the question of negligence on the part of the defendant is evenly balanced, or that it preponderates in favor of the defendant, then, in that case the plaintiff cannot recover, and your verdict must be for the defendant — no cause of action. ^^ S 1388. Effect of Admission of Plaintiff that Explosion Was His Fault. The court instructs the jury that, even if they believe fi"om the evidence that defendant S., after the explosion, and injury of the plaintiff, stated or admitted that he was to blame in the matter, or that it was his fault, yet that does not entitle the plaintiff to re- cover unless the evidence in the case before the jury, including such statements of said S., if the juiy believe it was made, under the in- struction given by the court, shows that the said S. was negligent, and that his negligence was the direct and proximate cause of the plaintiff's injuries.^* § 1389. Foreman Assumes Risk of Carelessness of Employes Sub- ject to His Control, (a) The testimony is undisputed that the plaintiff had charge of the wareroom in which said accident occurred, and of the unloading and depositing the merchandise brought into said building, as well as the direction and control of the employes whose duty it was to truck said goods, including- all glass therein. If, therefore, you find from the evidence that the said injury was caused by the passageway being obstructed by the employes trucking goods therein, your verdict will be for the defendant, unless you find that dence, that appellee was under formance of such statutory duty thli'teen years of age. Section 77, resulting in injury to another may chapter 38, of the Criminal Code therefore be presumed to be neg- declares, 'that it shall be unlaw- ligence as a conclusion of law.' ful for any person, firm or corpora- To the same effect is L. S. & M. tion to employ or hire any child S. Ry. Co. v. Parker, 131 111. 566, under thirteen years of nge ex- 23 N. E. 237. If the non-perform- cept as hereinafter provided.' . . . ance of a statutory duty resulting If by reason of this prohibition in personal injury to another is the employment of a child under negligence in law, the doing of thirteen years of age without a something prohibited by statute certificate, is negligence in law, resulting in personal injury to an- and the injury occurs in conse- other must also be negligence in quence of such employment, there law. There is then no error in is no error in these instructions, stating in the instructions that It was held in the case of T. H. the employment of a child under & I. R. Co. V. Voelker, 129 111. the age of thirteen without a cer- 555. 22 N. E. 20. that 'A statute tificate from a school board is commanding an act to be done negligence. " creates an absolute duty to per- 33 — Downey v. Gemini 'Mining form such act, and the dutv of Co.. 24 Utah 431, 6S Pac. 414 (417), such performance does not depend 91 Am. St. Rep. 79!^. upon and is not controlled hy sur- 34 — Schwartz v. Shull, 45 W. Va. rounding circumstances. Non-per- 405, 31 S. E. 914 ('916). 934 FORMS OF INSTRUCTIONS. [§ 1390. the defendant personally directed the obstruction of said passageway. And the court further instructs you that an order given by the de- fendant to pile said goods in the north end of the store was not an order to obstruct a permanent passageway therein. (b) You are further instructed that the foreman and plaintiff in this case not only assumed all ordinary risks of the work he was personally doing, but he also assumed all the risk occasioned by the carelessness of the employes subject to his control, and over whom he was superintendent, while in the performance of their work, and it is therefore the duty of the plaintiff to see that those under his control and direction properly performed their work, and if, owing to the carelessness of said employes under said plaintiff's control in per- forming their work, said plaintiff was injured, then the plaintiff can- not recover, and your verdict must be for the defendant.^^ REASONABLY SAFE PLACE TO WORK. § 1390. Master Must Furnish Reasonably Safe Place and Sur- roundings, (a) The jury are instructed that it was the duty of the defendant in this case to use ordinary care and prudence in furnish- ing to the plaintiff at and before the time of the accident complained of, a reasonably safe place and reasonably safe surroundings in which to work, and to use reasonable care to maintain and keep such place in a reasonably safe condition.^** (b) It is the duty of a master or employer to furnish his servant or employe with a safe place to work, and to make provisions for the safety of his employes or servants as will protect them against the dangers incident to their employment. (c) You are instructed that S. and H. were not obliged to furnish the said P. with an absolutely safe place to work in or to make sup- ports of the tunnel absolutely safe, but they were only required to use ordinary care to protect their employes against accident, etc.^' (d) It is the duty of the employer to furnish a suitable and safe place for his employes to work.^^ (e) The court instructs the juiy that it was the duty of the de- 35 — Kennard v. Grossman, — misled to accept the first instruc- Neb. — , 89 N. W. 1025 (1026). tion above g-iven as meaning that 36 — Hansell-Elcock F. Co. v. defendants were required to fur- Clark, 115 111. App. 209 (212), aff'd nish an absolutely safe place in 214 111. 399, 73 N. E. 787. "We which deceased was to work." think this instruction states the 38 — Grijalva v. S. P. Co., 1.37 Cal. correct rule as to appellant's duty 569, 70 Pac. 622 (624). "It stated to appellee as to furnishinpr him the law as laid down by this court a reasonably safe place and rea- in Mullin v. Horseshoe Co., 105 sonably .safe surroundings in Cal. 83, 38 Pac. 535. And there was which to work, and in maintaining no issue made by pleadings as to the same In a reasonably safe con- the character of the place, as the ditlon." answer admits that it was a dan- 37 — Pawley v. f?wenRen. 146 Cal. g-erous place, and that the work 471. 80 Pac. 722 (725). "We do not was dangerous." think the jury could have been The above instruction standing § 1391.] NEGLIGENCE— MASTER AND SERVANT. 935 fendant, except in so far as it may have been excused therefrom by the duty of the plaintiff, under the evidence, to use ordinary care and skill in the management of that kind of business for the protection of the plaintiff; and if they believe from the evidence that the defendant failed to do what, under the evidence, the jury may believe was in- cumbent on its part to do, in order to keep the room in which plaintiff worked in a reasonably safe condition in that nature of business, and that the injury to the plaintiff' was directly caused by such failure, then they should find for the plaintiff.^^ (f ) It was the duty of the defendant to keep the premises about which the plaintiff was employed in a reasonably safe condition — that is to say, in such a condition as the premises would have been kept by a person of ordinary prudence under the same circumstances, con- sidering the nature of the work to be performed. (g) The defendant was under no obligation to keep the plaintiff absolutely safe and free from danger, nor to insure the plaintiff against accident. His duty, to express it tersely, was to use ordinary care to secure the plaintiff's safety. Ordinary care, you are instruct- ed, is the care that is ordinarily exercised by persons of average prudence under the same or similar circumstances. Just what that degree of care is, or would be is for the jury to determine. Having determined what, under the circumstances, would have been ordinary care it is for you to say whether such care was exercised by the de- fendant about the premises in question. (h) You are instructed that it was the duty of the defendant com- pany to keep the premises about which the plaintiff was employed in a reasonably safe condition; that is to say, in such a condition as the premises would have been kept by a person of ordinary prudence un- der the same circumstances, considering the nature of the work to be accomplished.*'' (i) The court instructs you that if the defendant furnished a place which was as safe and free from danger as other persons of or- dinary care, prudence and caution, and engaged in like business, and in like circumstances, ordinarily furnish, then you must find that the defendant furnished to the plaintiff a reasonably and ordinarily safe place to work.*^ § 1391. Insufiacient Fastening or Nailing of Scaffold, (a) If you believe from the evidence that S. B., the foreman of defendant X., or- dered the carpenter S. to nail one of the planks of the scaffold, from alone and outside the issue of the 24 Utah 431, 68 Pac. 414 (415), 91 above case as made by the plead- Am. St. 798. ings would ordinarily be erroneous. 41— Guinard v. Knapp, Stout & It does not state the correct rule Co.. 95 Wis. 482. 70 N. W. 671. of law, unless qualified in some "This proposed instruction unde- such manner as the instruction niably states the law of negligence just preceding it. This instruc- as applicable to the duty of the tion, therefore, is not commended master to furnish a safe place to for general use. — [Editor.] work, and tn the facts of the case, 39 — Russell C. Cnal Co. v. Wells, with substantial accuracy. It 96 Va. 416. 31 S. E. 614 (615"). should have been given as asked." 40 — Downev v. Gemini Min. Co.. 936 FORMS OF INSTRUCTIONS. [§,1392. which plaintiff fell, to the trestle inside with eightpenny nails, and that said S. did so under and by direction of said B., and if you further believe from the evidence that said B. was guilty of negli- gence in having said plank so fastened and if you further believe from the evidence that while plaintiff was working on said scaffold the said fastening of said plank came loose, and thereby caused plaintiff to fall from said scaffold and to be injured; and if you believe from the evidence that the negligence, if any, of said B. was the proximate cause of said injury — then you will find for the plaintiff, unless you find for the defendant under the chai'ges here- inafter given you. (b) If you do not believe from the evidence that said plank was so fastened by the order of said foreman B., and that he was guilty of negligence in having it so fastened, and that such negligence, if any, was the proximate cause of plaintiff's injury, if any, you will find for the defendant. (c) Or, if you believe from the evidence that the plaintiff himself was guilty of negligence in the construction of said scaffold, and that such negligence, if any. proximately contributed to his injuries, if any, you will find for defendant ; or if you believe from the evidence that either or any of the fellow servants with the plaintiff were guilty of negligence in the construction of said scaffold, and that such neg- ligence, if any, proximately contributed to Ms injuries, if any, you will find for defendant ; or if you believe fi'om the evidence that when the plaintiff went upon said scaffold he knew it was unsafe for him to walk or stand thei'eon to do work, you will find for defendant. ■*- § 1392. Servant May Assume Master Has Furnished Safe Scaffold. It was not incumbent upon the servant to inspect the implement which the master provided him upon and with which to perform his work, but he had a right to rest upon the assurance that the master would perfoim the obligations and duties which the law east upon him to exercise reasonable care to provide him a reasonably safe scaf- fold upon which to Avork.'*'' § 1393. Injury from Falling of Brick through Insufficient Plat- form of Scaffolding. If the jury believe from the evidence in this case, that the platform of the scaffolding in question did not have a sufficient covering or other proper provision to render its use reason- 42— Boettler v. Tumlinson. — App. — , 44 S. W. 894; Smith v. Rich- Tex. Civ. App. — , 77 S. W. 824 ardson Lumber Co., 92 Tex. 450, (825). "If the charge given by the 49 S. W. 574; Scott v. T. & P. Ry. court Is in itself unobjectionable. Co., 93 Tex. 625, 57 S. W. 801; Hum- a party cannot complain of the phreys v. Edwarrls, 89 Tex. 517, 36 failure of the court to give an in- S. W. 333 (434); Cotton State Bldg. .struction which he ha.s neglected Co. v. Jones, 94 Tex. 497, 62 S. W. to ask. This we believe to be the 741; Reazley v. Denson, 40 Tex. rationale of the decisions upon 433; Wenar v. Stenzel. 48 Tex. 489; charges exc'luding issues raised by Stude v. Sinnders, 2 Pnsev. TTn- the pleadings nnd evidence. Chnm- ren. Cns. 1?4." blee V. Tarbox. 27 Tex. "HO. 84 Am. 43 — Momence R r-o ir Turroll, Dpc. 614; Johnston v. Johnston. — 106 Tl'. Ann. 160. aff'd 205 Til. 515, Tpx. Civ. App. — , 67 S. W. 124; 68 N. E. 1078. Eppstein v. Thomas. — Tex. Civ. § 1394.] NEGLIGENCE— MASTER AND SERVANT. 937 ably safe to employes having business on the premises below and un- derneath said platform, and that the existence, location and use of the platfoi-m was not known to the plaintiff, A. B., and that the plaintiif was in the exercise of reasonable care at the time, and that for want of such covering, guard, i-ailing or protection, the brick in question fell down from said platfoi-m, and struck and injured the plaintiff, then the defendants in this case are liable.** § 1394. Injury through Defective Sewer Cover. The court in- structs the jury if you lind, from the evidence, that the defendant did not have actual notice of a defect in the sewer cover described in the declaration, yet if you find, from the evidence, that the cover of said sewer hole was in a defective condition and remained so for such a length of time prior to the accident to the plaintiff that the defendant might have discovered such defect by the exercise of reasonable diligence, then you will be justified in finding that the de- fendant had notice of such defect, and that it was the duty of the de- fendant to have repaired said defect.*^ § 1395. Pailure to Keep Boards on Sill of Window Securely Fastened. The court instructs you that it is the duty of the de- fendants to use reasonable care and diligence to keep the boards up- on the sill of the building securely fastened, and, if the board which injured the plaintiff fell from the sill of the building on which said plaintiff was working, and was not securely fastened on said sill, and fell because of such insecure fastening, and the defendant knew, or by the exercise of reasonable care might have known, of such in- secure fastening in time to have remedied the same, then the defend- ant was guilty of negligence, and is liable if the plaintiff was in the exercise of due care."' 44 — Angus v. Lee. 40 111. App. as to the construction of the plat- 304 (306). "It appears by this rec- form, before they beg-an to work ord that the practical men en- upon it. The law implies such a gaged in the construction of this duty where the platform is over a building did not so understand the thoroughfare. Jager v. Adams, obligations of the respective con- 123 Mass. 26, 25 Am. Rep. 7." tractors; for those for whom the 45 — Wrisley v. Burke. 106 111. appellee worked engaged, in their App. 30 (31), aff'd 203 111. 250, 67 contract, to floor the joists of the N. E. 8S8. story next over where their men 46 — Whitney & Starrette Co. v. might be at work, as a protection O'Rourke. 172 111. 177 (183). 50 N. to them; this was not done; but E. 242, aff'g 68 111. App. 487. "This there was a conflict of evidence as instruction expressly requires the to whether the appellants w^ere to, jury to find that the defendant and did. in this instance, notify knew of or by the exercise of the foreman under whom the ap- reasonable care might have known pellee worked, of where the appel- of the defect in question. The lants were going to work, so that use of the words 'due care' instead men might be kept from under of the customary words 'ordinary them. Why the particular brick care' is overcome by the fact that thnt hurt the apnellee fell can the jury we^-e gi\-eTi other ins^^ruc- onlv be f^onie'^tu'-ed: there is no tions both by pliin + iff and defend- .^virioiT^e urvnn the subject; and ant th-^t the r>ipi'->tiff must be in therefore t>^e instrii'^tion puts the the exercise of ordinary care. . . . right to recover wholly upon the We do not think that the words supposed duty of the appellants 'securely fastened' necessarily in- 938 FORMS OF INSTRUCTIONS. [§ 1396. § 1396. Elevator — Duty to Keep in Repair. The plaintiff prays the court to instruct the jury that it was the duty of the defendant, , to use ordinary care and diligence in keeping the elevator used by it in repair; and if they shall find from the evidence that the accident resulting in injuries to the plaintiff, , occurred by reason of a defect in said elevator, which defect could have been dis- covered and remedied by the defendant previous to the accident by the use of ordinary care and diligence in inspecting said elevator, or if they shall find that the said accident happened by reason of an improper method of construction of said elevator, and shall further find that the plaintiff was in the usual, ordinary, and proper discharge of his duties as the conductor of said elevator when hurt, then their verdict must be for the plaintiff.*'^ § 1397. Elevator — Failure of Master to Guard Opening, (a) The court instructs the jury that under the pleadings and evidence in this case it was the duty of the defendant to have had the elevator open- ing in the shipping room, mentioned in the evidence, provided with inclosing railing or gate to effectually bar said opening, for the pre- vention of accidents therefrom, and to keep such opening closed by such railing or gate when such opening was not being used, and that a failure to do so, if the defendant did so fail, was negligence upon the part of the defendant. And the court further instructs the jury that if the defendant did provide such railing or gate, and, by its of- ficers or agents authorized to direct and control said railing or gate as to its being kept open or closed, caused the same to be kept open when said elevator was not being used, then such providing of said gate or railing was no compliance with the ordinance read in evi- dence, and the defendant was guilty of negligence in that regard.'*^ (b) If the jury find from the evidence that prior to and on the , the defendant occupied the premises, known as "814 and volve the idea of absolute safety, care, may perform his duty with- The master is required to use rea- out exposure to dangers not aris- sonable care and prudence in pro- ing- within the obvious scope of vidinff the servant with safe and his employment, is not to be un- .suitiible appliances and instrumen- derstood as implying an absolute talities to be used by him in the liability for the safety of the work- work, which he is employed to do. man's place. Northcoat v. Bach.- He must also use all reasonable elder. 111 Mass. 322. It cannot be care to furnish to his employe a said that the instruction required reasonably safe place in which to too much of the appellant in stat- work, and use proper diligence to ing in substance that it was its keep such place in a reasonably duty to make a reasonable effort safe condition. Consolidated Coal to make the board secure. The Co. V. Haenni, 146 111. 614. 35 N. place where the appellee worked E. 162; Libby, McN. & L. v. Scher- could not be reasonably safe un- man. 146 111. 5.^)3; 34 N. E. 801. 37 less the boards w-ere securely fas- Am. St. 101; Hess v. Rosenthal, tened." 160 Id fi^l. 43 N. K. 743; 111. S. Co. 47— Baltimore B. & S. Mfg. Co. V. Rchvmnnowskl, 162 id. 447, 44 v. Jamar, 93 Md. 404, 49 Atl. 847 N. E. 876. The Implied contract of (849), 86 Am. St. 428. an employer with his servant to 48 — Wendler v. People's House furnish a suitable place in which Furnishing Co., 16!i Mo. 527, 6f5 S. the servant, while exercising due W. 737 (740). "The validity of the § 1398.] NEGLIGENCE— MASTER AND SERVANT. 939 816 North Broadway," mentioned in the evidence, and used the ele- vator mentioned in the evidence; and if the jury find from the evi- dence that on said day the plaintiff was in the service of the de- fendant as a cabinet repairer, and that it was in the line of his duty to ride upon the elevator mentioned in the evidence in the discharge of his duties; and if the jury further find from the evidence that said elevator passed through a hatchway in the floor of the shipping room; and if the jury find from the evidence that the shipping room near said elevator opening on said day was dark and insufficiently lighted, and that the sunlight was partly excluded by the piling up of furni- ture therein; and if fhe jury find from the evidence that the defend-, ant did not exercise ordinary care in maintaining said room near said elevator opening in such condition ; and if the jury further find from the evidence that defendant was maintaining said elevator opening in said floor without keeping the guard or rail closed to prevent per- sons from falling therein, and sustaining injury; and if the jury further find from the evidence that defendant did not exercise ordi- nary care in maintaining said elevator hole in said floor without keep- ing the guard for protection closed and without having said room properly lighted; and if the jury further find from the evidence that on said day the plaintiff was at or near said elevator hole for the purpose of using said elevator in the discharge of the duties of his employment, and that while so near said elevator opening for said purpose he fell therein and sustained the injuries on account of which he sues; and if the jury further find from the evidence that the plaintiff was caused to so fall into said opening bj'^ reason of its being so open, unlighted and unguarded ; and if the juiy further find from the evidence that the plaintiff knew that said room was in- sufficiently lighted, and that there was no guai'd or protection kept closed around said elevator opening, and that thereby he incurred some risk in remaining in defendant's service and in discharging the duties of his emplo>Tnent; yet if the jury find from the evidence that the dangers arising to the plaintiff by reason of said unguarded elevator opening and said want of light near said elevator were not so ob- vious and imminent as to tlireaten immediate injury, and were not such that an ordinarily prudent person under the circumstances would not have remained in defendant's service and performed the duties plaintiff was hired to perform; and if the jury further find from the evidence that plaintiff was exei'cising ordinary care at the time of his injurv, plaintiff is entitled to recover.*" § 1398. Mines — Failure to Partition off Stairway from Main Air- way Escapement Shaft, (a) The juiy are instructed tliat if plain- orrlinnnrp in question, the ohli.era- Am. St. 601; Brannock v. 'Klmore. tion of defendant to obey it. and 114 Mo. 59. 21 S. W. 451; Shear. & its liabihty for failure to do so, R. Neg-. par. 13." are propositions of law clearly es- 49— "Wendler v. People's H. F. tahlished. Murray v. Mo. Par. Ry. Co., supra. Co., 101 Mo. 236, 13 S. W. 817, 20 940 FORMS OF INSTRUCTIONS. [§ 1399. till did say he fell and was injured as a result, partly, of bis own neglect, yet if the jury believe, from a preponderance of the evidence, that the plaintiff's injury was occasioned by reason of the Avillful failure of defendant to partition off the stairway from the main air- way escapement shaft, and provide substantial hand-rails and plat- forms for the same, and that such injury would not have occurred but for such willful failure, then the verdict should be for the plain- tiff. (b) The jury are instructed that if they believe, from a pre- ponderance of the evidence, that on the , 18 — , defendant was the operator of siaid coal mine worked by shaft, which had been in operation for more than a year for hoisting coal for sale and use, and there were more than six men employed in such mine, and an escapement shaft had been constructed in addition to the hoist shaft, and that said mine was less than one hundred feet in depth, but de- fendant willfully failed to provide such escapement shaft with stair- Avays partitioned oft' from the main air-way, having substantial hand- rails and platforms, and by reason of such willful failure the plain- tiff, while in the employ of defendant in said mine, fell to the bot- tom of said shaft and was injured, the verdict should be for the plaintiff.-^" § 1399. Mines — Statutory Inspection of. (a) The court instructs you that in this case the plaintiff must prove all the material allega- tions of his declaration, and this being a suit for an alleged violation of a statute, the plaintiff must prove before he can recover, first, that the defendant itself or through its proper representative Avillfully and wrongfully violated the act in question, in the manner alleged in the plaintiff's declaration; second, the plaintiff must prove by the greater weight of evidence that this willful violation of this act as alleged in the declaration (if you believe there was a violation) was the prin- cipal and substantial cause of the injury. (b) And you are instructed that if you should believe from the evidence that an examination of the mine was not made the day the deceased was injured, before he and other employes entered said mine, 50 — Carterville Conl Cn. v. Ab- depend in such case on the exer- bott. 181 111. 495 (498). 55 N. E. 131, else of ordinary care by the per- aff's- 81 111. App. 279. "If one is son injured, nor can he be pre- injured as the result of some act eluded by mere contributory neg- of neg-lig-ence on the part of the ligrence. This legislation fixes a mine owner other than the failure broad and distinct exception to the to comply with the specific du- general rule. The court referred ties required by the statute, then to section 14 of an Act amending the person injured must have been an Act providing for the health in the exercise of ordinary care and safety of persons employed in before he can maintain an action, coal mines, the amendment being and must allege and prove that enforced July 1st. 1887, and stated he was in the exercise of such that the principles herein argued care. The rule is different, how- are sustained by T?artlett C & M. ever, under this legislation where Co. v. Roach, 68 Til. 178; T.itchfield there is a willful failure to comply C. Co. v. Taylor, 81 111. 590; Catlet with the provisions of the statute, v. Young, 143 111. 74, 32 N. E. 447." and the right of recovery cannot § 1400.] NEGLIGENCE— MASTER AND SERVANT. 941 but yet if you further believe from the evidence that an examination of the mine was made by the defendant through its manager some hours before the deceased was injured, and said mine was apparently safe from danger of falling clods, rock, etc., and that you further believe from the evidence that even though the mine had been in- spected early in the morning before deceased went to work, this acci- dent would have happened, then the court instructs you that, under the evidence, the accident was not caused prineii^ally and substan- tially by a failure to inspect the mine as required by law.^^ § 1400. Mines — Failure of Mine Boss to Visit Room in Which Miners Work, The court instructs the jury that if they believe from the evidence that, under and by the rules of the defendant company, it was the duty of the bank or mine boss of said company to make daily visits to the room in which the miners were at work, for the purpose of seeing whether or not said rooms were in safe condition for the miners to continue their work, and if they further believe from the evidence that the mine boss of the defendant failed or neg- lected to visit the room in which the said plaintiff was at work, or failed, if he made such visit, to discover the danger which threatened the plaintiff if he continued his work in said room, if they believe such danger was threatening and could have been discovered by the use of ordinary diligence on the part of said boss, then said company was guilty of negligence. ''- § 1401. Maintaining Coal Chute Without Guard Gate or Guard Board. If you do not find from the evidence that said coal chute was without a guard- gate or guard board, or if you find it was without a guard board or guard gate, yet if you do not believe from the evidence that the defendant was guilty of negligence in having said chute in said condition, and that such negligence, if any was the proximate cause of plaintiff" 's injuries, if any, you will find for defendant. ^^ § 1402. Allowing Shavings to Accumulate in Passageway Near Molder. (a) If you find the facts to be that the defendant i;nneees- sarily and dangerously permitted shavings to accumulate in the pas- sageway near the molder, and that the plaintiff, in obedience to the superintendent's order's, was compelled to pass near them, and that they caused him to fall and slip and cut himself, that would be negligence, and j'ou should answer the first issue *'Yes. " (b) If you find the facts to be that the rip saw and molding ma- chine were dangerously close, and that in order to comply with the superintendent's order the plaintiff was compelled to pass with a load in his arms between them, and that the defendant company had permitted the regular passageway for this lumber to become filled up 51— Mo. & 111. Coal Co. v. 5."?- Int. & G. N. R. Co. v. Har- Schwalb, 74 111. App. 567 (574). ris. — Tex. Civ. App. — , 65 S. "W. 52— Russell C. C. Co. v. Wells, 885 (888). 96 Va. 416, 31 S. E. 614 (615). 942 FORMS OF INSTRUCTIONS. [§ 1403. with plank, and failed to provide another, that would be negligence upon the part of the defendant; and, if the plaintiff was injured thereby, — if that negligence caused his injury, — your answer to the first issue should be ''Yes." (c) So if the jury find that a counter shaft or loose pulley, or a covering for a saw running naked, was a proper and reasonable safe- guard for its employes, and the defendant failed to provide it, that is negligence ; and, if the jury find that the plaintiff was injured by reason of such negligence, they will answer the first issue ''Yes. "^* § 1403. Injury by Being Jolted from Car on Logging Bead, (a) The court charges the jury at the request of the defendant, that if they believe from the evidence that at the time immediately pre- ceding the alleged accident the logging track of the defendant was in good condition, — that is, in as good condition as first-class logging roads of the same nature and kind are kept, — then they must find their verdict for the defendant under the first count of the com- plaint. (b) And the court further charges the jury that if they believe from the evidence that at the time immediately preceding the al- leged accident that the cars of the defendant were not in a defective and imperfect condition, then they must find for the defendant under the second count of the complaint. (c) And the court further charges the jury that if they believe from the evidence that at the time of the alleged accident the en- gineer in charge of the locomotive which was drawing the siaid train was not guilty of any negligence in so running the said train over said track in its then condition, as alleged, as to negligently cause R. M. to be jostled and jolted and thrown fi'om his position on the cars and killed, they must find their verdict for the defendant on the third count of the complaint. (d) And the court further charges the jury that if they believe from the evidence that the engineer in charge of said train did not mn the cars in a negligent and careless manner, so as to jolt any of said cars from said track, they must find for the defendant on the fourth count of the complaint. (e) And the court further charges the jui-y that if they believe from the evidence that R. M. was so careless and negligent in his con- duet and manner of riding upon the car from which he was thrown that it caused him to fall from, or to be jostled from, the car up