NYBACK v. CHAMPAGNE LUMBER CO., 109 F. 732

WOODS, Circuit Judge, after making the foregoing statement, delivered the opinion of the court. The better method of dealing with special instructions, doubtless, is to incorporate such as are approved in the charge of the court and give them to the jury, without mention of the fact that they were requested by either party.

The right to ask special instructions does not include the privilege of submitting an argument upon the evidence, and no instruction or series of instructions explaining or discussing the bearing of the evidence either upon the whole case or upon a particular issue or question should be allowed to go to the jury as the work of counsel.

Whatever presentation of evidence or explanation or discussion of the force of evidence is given to a jury in the form of instruction by the court should be given as coming from the court; counsel being at liberty, of course, to make suggestions in order to supply any supposed omission or to correct a mistake of the court. This, however, is not a matter of assigned error, and is only preliminary to a consideration of the questions presented.

In its entire scope the charge of the court was distinctly and strongly adverse to the plaintiff; to such an. extent, indeed, as hardly to be justifiable, unless the case was so clear as to have warranted a peremptory instruction for the defendant. In the federal courts, as the practice was explained and defined by the chief justice in Starr v. U. S., 153 U. S. 614, 624, 625, 14 Sup. Ct. 919, 923, 38 L.

Ed. 841, 845, “the presiding judge may, if in his discretion he think proper, sum up the facts to the jury; and if no rule of law is incorrectly stated, and the matters of fact are ultimately submitted to the determination of the jury, it has been held that an expression of opinion upon the facts is not reviewable on error. Rucker v. Wheeler, 127 U. S. 85, 93, 8 Sup. Ct. 1142, 32 L. Ed. 102; Lovejoy v. U. S., 128 U. S. 171, 173, 9 Sup. Ct. 57, 32 L. Ed. 389.

But he should take care to separate the law from the facts, and to leave the latter in unequivocal terms to the judgment of the jury, as their true and peculiar province. McLanahan v. Insurance Co., 1 Pet. 170, 182, 7 L. Ed. 98. As the jurors are the triers of facts, expressions of opinion by the court should be so guarded as to leave the jury free in the exercise of their own judgments.

They should be made distinctly to understand that the instruction is not given to a point of law by which they are to be governed, but as a mere opinion as to the facts, to which they should give no more weight than it was entitled to. Tracy v. Swartwout, 10 Pet. 80, 96, 9 L. Ed. 354; Games v. Stiles, 14 Pet. 322, 10 L. Ed. 476.” The charge before us exceeds these limitations.

In respect to the vital issue whether the hole in the floor, into which the plaintiff stepped, should have been guarded, the court, in the first instance, said: “blow I do not want to take that question from the jury; it is in the case; and yet I hardly think the jury will be warranted in finding that the mill was not properly constructed, so far as the hole is concerned;” and, on the return of the jury into court for further instruction, said: “Well, the court has told you on that point that I didn’t think you would be justified in finding from the weight of the evidence in the case that the mill was faultily constructed, because the evidence on that question is all on one side.” It is a question of law whether given evidence is sufficient to justify a proposed finding, and, to avoid misunderstanding, the court’s first statement should have been accompanied with an explanation “separating the law from the facts,” and giving the jury to understand that the opinion expressed had reference only to the question of fact, and that that question was submitted to them upon evidence legally sufficient to support a verdict either way.

The final statement, though doubtless not so intended, withdrew the question from the jury. When the jury is told that the evidence is all on one side, it is equivalent to an explicit direction to find accordingly.

If in fact the evidence was all on one side, the question should have been expressly taken from the jury and the case submitted, as it was at the trial under the original declaration, upon the questions whether the injury of the plaintiff 'was attributable to the negligent failure of the defendant to light the premises properly, or to instruct him how to do his work, or to warn him of the dangers incident thereto.

The court, however, proceeded on the erroneous idea that in considering whether there should have been a guard about the hole, or at either end or side of it, the jury could not exercise their own judgment, but were bound to follow the testimony of the witnesses, who were agreed substantially that all the sawmills in that part of the state had at the ends of their slashers unguarded holes like that in question, and that guards were impracticable.

That was, however, a matter of opinion, about which, on the testimony, showing the size, position, surroundings, and purpose of the hole, the jurors not Only had the right, but were in duty bound, to form their own judgment. The allegation of the declaration is that a railing at the south end and east side of the opening was practicable, and would not have impaired the use of the hole for the purpose intended.

It was not a question whether the place should have been “fenced up two or three feet high, so that a boy or man could not get into it,” or whether there should have been a guard “to keep a man out,” but whether there might and should have been some form of guard or railing affording reasonable protection against an accidental stepping into the opening by an employé engaged at work near by.

It is evident that a railing a few inches high — certainly one a foot or more in height — at the south end would probably have saved the plaintiff from the harm which befell him, and whether it should have been there, and whether its absence was the cause of the accident, were questions for the jury. Head v. Hargrave, 105 U. S. 45, 26 L. Ed. 1028; Bridge Co. v. Olsen (present session of this court) 108 Fed. 335.

It was, of course, true, literally, as the jury was told, that they were not to try 'the case according to their knowledge outside of the case, but according to the evidence; but the context makes entirely probable the inference by the jury that they were bound to accept the statements and opinions of the witnesses, though convinced, in the light of their own experience, knowledge, and judgment, that the witnesses were mistaken or untruthful. “So far from laying aside their own general knowledge and ideas,” said Justice Field in Head v.

Hargrave, “the jury should have applied that knowledge and those ideas to the matters of fact in evidence in determining the1 weight to be given to the opinions expressed; and it was only in that way that they could arrive at a just conclusion.

While they cannot act in any case upon particular facts material to its disposition resting in their private knowledge, but' should be governed by the evidence adduced, they may, and to act intelligently they must, judge of the weight and force of that evidence by their own general knowledge of the subject of inquiry.” This part of the charge was erroneous, also, in assuming that, if the mill of the defendant “was constructed in the customary manner of all the mills” in that region, the fact was conclusive against the allegation of negligent or defective construction.

While proof of the like construction of other mills was competent evidence upon the question, obviously it was not conclusive. Common sense and reason do not lose their sway because, through ignorance, inattention, or selfishness, unreasonable customs may have prevailed. •In view of the fact that there must be another trial of the case it may be well to refer to some other questions, though not properly presented for review.

In respect to the question of contributory negligence, the charge of the court strongly emphasized the idea that the hole was in plain sight, and interrogatively suggested that the plaintiff was bound to see it.

The other side of the question (that the plaintiff was young and inexperienced, and claimed to have been theretofore ignorant of machinery and of mills and their construction; that he had never seen this mill before that day; that he had been at work little more than an hour before the accident, and, until within two or three minutes before, his work had been in a place from which the hole was not likely to have been observed; and that in the possible flurry of a new employment, with strangers whose language he did not understand, lie might have failed to see what an experienced workman would have looked for) not only was not presented, but suggestions to the contrary were made, such as that it was part of his business to saw slabs there, — his principal business.

His testimony was that he had done nothing at the slasher before he was hurt. He was not at that business when he was hurt, and, if in fact he had done nothing at it, he was not chargeable with the knowledge which such experience would have brought him.

On the subject of independent contractor, the court gave to the jury, at the request of the plaintiff, a number of propositions, including this: That, “whatever the relation was between the defendant and the plaintiff, the defendant’s duty was to warn the plaintiff of any dangers incident to his place of work which the defendant knew or ought to have known, and of which he was not justified in assuming the plaintiff was aware.” At the request of the defendant the court instructed that if Barber was an independent contractor, and the plaintiff was in his employ, and the defendant was guilty of no negligence in failing to guard and to light the hole, then Barber alone was responsible for any neglect to inform the plaintiff of the hazards of the place where he was set to work.

And this, in substance, was repeated in court’s own words. The defendant also asked a specific instruction that from the written contract between the defendant and Barber, and the •further evidence in relation thereto, it appeared that Barber was an independent contractor at the time the plaintiff was injured; but, upon reading that part of the request, the court said: “I do not wish to give that in the language it is.

I want to submit that asa matter of fact to the jury, to say from all the evidence whether that was so or not.” lío definition of “independent contractor” was given, and no instruction to guide the jury to an understanding of what was meant thereby. To what extent the owners of such mills or of other manufacturing establishments, in which there are machines or places about .which the employé is exposed to special dangers,. may. escape responsibility to the workman, who gets hurt, by the interposition of an independent (and it may be irresponsible) contractor, is evidently a question of far-reaching consequences.

Two cases are cited in the brief for the defendant in error in justification of the position asserted: Rolling Mill v. Cooper, 131 Ind. 363, 30 N. E. 294, and Reier v. Springs Works, 109 Mich. 244, 67 N. W. 120.

Neither of these cases, however, will be found to be fully in point. .Cooper was employed by one who had contracted with the mill company to heat and deliver scrap iron at the squeezer, by which it was to be squeezed before delivery to the rollers by which it was to be rolled into bars.- In placing the iron in the furnace, taking it out, delivering it at the squeezer, and in removing the slag and cinders, the contractor needed assistance; and, one of his regular helpers being ill, he employed the plaintiff, a youth of eighteen, and put him to carrying slag from the furnace.

He dumped a quantity into a small pool of water, and there followed an explosion, from which he received serious and permanent injury.

It is not perceived that the case was different from what it would have been if the contractor had undertaken only to remove the slag, and had employed the boy to assist him in doing that work; and, if the mill company was liable for the injury, why would it not have been liable if it had contracted with a teamster or truckman to do hauling about the mill, and a boy in his employ should have been injured by reason of a defect in his wagon or trucks, or by the bite or kick of a vicious horse, against which he was not warned? Wood v. Cobb, 13 Allen, 58.

The decision whs placed by the court upon the principle, stated to be well settled, “that where one lets a contract to another to do a particular work, reserving to himself no control over such work except the right to require it to conform- to a particular standard when completed, he is not liable for the negligence of .the party to whom the contract is let.” The following cases were cited, but they and the cases therein cited will be found to have no bearing upon the present question, except, perhaps, as they afford interesting illustrations of the application of the doctrine of respondeat superior: Water-Supply Co. v.

White, 124 Ind. 376, 24 N. E. 747; Railway Co. v. Farver, 111 Ind. 195, 12 N. E. 296, 60 Am. Rep. 696; Ryan v. Curran, 64 Ind. 345, 31 Am. Rep. 123; Blake v. Ferris, 5 N. Y. 48, 55 Am. Dec. 304; Pack v. Mayor, etc., 8 N. Y. 222; King v. Railroad Co., 66 N. Y. 181, 23 Am. Rep. 37; Town of Pierrepont v. Loveless, 72 N. Y. 211.

In the Reier Case, the plaintiff, a fifteen year old boy, was hurt by the bursting of an emery wheel at which he was engaged. “The declaration was based upon the existence of the relation of master and servant,” and charged negligence of the master in placing the plaintiff, inexperienced, at dangerous work, without warning or instruction. The plaintiff himself testified that he was not in the employ of the defendant, but of a contractor, to whom, as the proof showed, the defendant furnished the building, tools, and machinery with which' to perform the work contracted.

The opinion, of the court was that, “if it was negligence to set the plaintiff at this work, * * the contractor alone was at fault”; and the dictum was added that “the defendant, upon a proper declaration, could he held liable only for failure to furnish suitable machinery, and to keep it in proper repair, provided it was its duty to do so upon sufficient notice.” The present case • is broadly distinguishable. The defendant here was engaged in the general operation of its own mill. Owning the mill and machinery, it had possession, and, in a general sense, control, of all operations and work carried on.

The slasher belonged to the defendant, and its sole use was to cut slabs and other like material belonging to the defendant into proper lengths for shingles, lath, and pickets, which, when cut, should belong to the defendant.

The burden of keeping that machine in running order, the expense of oiling and repairing, remained with the defendant; the power to run it and the light to light it the defendant furnished; but it contracted with Barber to do the manual work necessary to operate the machine in cutting the material so- furnished, giving him no authority to use it upon other material of his own, or for anybody other than the defendant; and for the doing of this manual work upon the defendant’s machine and material, as directed by the defendant, the defendant agreed to pay him a price measured by the product.

While nominally Barber was to employ and pay for such assistance as he needed, the wages of the helpers were paid by the defendant, and deducted from the amount which otherwise should have been, due to Barber.

Without undertaking to lay down lines for the decision of other cases, we have no hesitation in saying that upon the facts stated, and as they appear in this record, Barber was not an independent contractor, hut a servant of the defendant, put in charge of a particular machine upon the terms stated, to operate it for the defendant, and that whatever duty there was to notify an inexperienced person engaged to work upon or about it of the dangers incident to the employment remained a duty of the defendant. The judgment below is reversed, with direction to grant a new trial.