ALBERT MILLER & CO. v. WILKINS, 209 F. 582

KOHLSAAT, Circuit Judge (after stating the facts as above). There can be no doubt, under the facts presented, as to the liability of plaintiffs in error for the injuries sustained by defendant in error. They were clearly charged with the duty of providing safe instrumentalities for their servants while at work, and defendant in error had a right to rely upon their performance of that duty.

It is said in Labatt, Master & Servant, § 172: “Both upon principle and authority it is clear that a master is answerable for defects in any instrumentalities which he has temporarily taken over from the owner and made a part of his own plant. In such cases the elements of possession and the exercise of control are decisive. * * * So far as regards his obligations to his servants, he must be considered as the owner pro tempore.

This principle is applicable whether he has borrowed the appliance in question or has hired it for a specific consideration or has taken possession of it for a definite or an indefinite period with a view to the performance of certain work in which he and the owner are both interested.” Where an elevator company took a car from a railway company by means of an inclined track, an employé of the elevator company was injured, while engaged in conducting a car by gravity down this incline, by reason of a defective brake on the car.

Held, that the defect might have been discovered by the use of ordinary care on the part of the elevator company, and-that .the question of the liability of the elevator company was properly submitted to the jury. Republic Elevator Co. v. Lund et al., 196 Fed. 745, 116 C. C. A. 373 (C. C. A. 8th Cir.). That a master is bound to use reasonable care to provide a safe place in which his servant may work is now too well established to require citation of authority, and it .can make no difference, so far as the servant is concerned, whether the master is using his own property or that of another.

As was said in American Machinery Co. v. Ferry, 141 Ky. page 374, 132 S. W. page 547: “Tbe master who contracts to do work on the premises of another must exercise ordinary care for the safety of his servants there, no less than on his own premises.” Miller & Co. were not excused from the duty of providing a safe place and safe appliances. They had full opportunity to satisfy themselves that the premises and appliances were in good and safe condition, and were bound to do so as to defendant in error.

Therefore the court properly left it to the jury to determine from the evidence whether they discharged their duty in that respect toward defendant in error.

Plaintiffs in error contend that the court erred in telling the jury that one way of ascertaining the amount of damages, if they found plaihtiffs in error and said Murphy Company guilty as charged, would be to award defendant in error such a sum as, placed -at 5 per cent, interest, would produce the amount he earned, and that it was error, on the facts of the case, to tell the jury it was for them to decide whether the injuries of defendant in error were permanent, at the same time advising them that he did not think, from the evidence, that they were permanent.

The interest method above stated was not a proper way in which to ascertain the amount of damages. Houston Railway Co. v. Willie, 53 Tex. 318, 37 Am. Rep. 756; Rudiger v. C. St. P. M. & O. Ry. Co., 94 Wis. 191, 68 N. W. 661; Crouse v. C. & N. W. Ry. Co., 102 Wis. 196-208, 78 N. W. 446, 778; Hackett v. Wis. Cent. Ry. Co., 141 Wis. 464-473, 124 N. W. 1018. As to the extent of the injuries, we are of the opinion that that question was properly left to the jury.

However that may be, it is plain from the small amount of the verdict that the jury neither considered the injuries permanent nor estimated damages in the manner suggested by the court. In Press Pub. Co. v. Monteith, 180 Fed. 356-362, 103 C. C.

A. 502, 508, the United States Circuit Court of Appeals for the Second Circuit states the rule as follows, viz.: “The more rational and enlightened view is that in order to justify a reversal the court must be able to- conclude that the error is so substantial as to affect injuriously the appellant’s rights. ' Prejudice must be perceived, not presumed or imagined.” Here,- whatever presumptions there are rebut the theory of prejudice or injury.

With reference to the contention of plaintiffs in error that they were prejudiced by the instructions of the court bearing upon the liability of Murphy Company, it is sufficient to say that the complaint joins both parties, charging them with joint and several liability. The jury found only plaintiffs in error to be guilty, as, under the pleadings and evidence, it lawfully might do. Having been found guilty, they are not in position to urge error in the instructions given by the court in regard to Murphy Company.

This is a suit brought by defendant in error and not one for the adjustment of the relative rights between the defendants to the suit. The only question is: Were the plaintiffs in error guilty of negligence? The jury found they were, and the court entered - judgment on the verdict, wherein w-e concur. Other errors assigned we do not deem it necessary to decide. . The judgment of the District Court is affirmed.