KERR-MURRAY MFG. CO. v. HESS, 98 F. 56

THAYER, Circuit Judge, after stating the case as above, delivered the opinion of the court. The defendant company complains in the first instance that the trial judge was guilty of a gross abuse of his discretionary power in refusing to grant the defendant a continuance, but this complaint is without any adequate foundation. When the case was called for trial, the defendant’s attorney presented an affidavit for a continuance which stated, in substance, that the defendant company could not safely go to trial because John Loose, its most important witness, was sick at his home at Ft. Wayne, Ind.

The plaintiff’s attorney thereupon consented that counsel for the defendant might make a statement of all the facts which they expected to prove by said Loose, and that such statement might be read to the jury as the testimony which the absent witness would give if present. After this offer was made, the court overruled the application for a continuance.

Subsequently, at the conclusion of the defendant’s testimony, an affidavit was made by one of its counsel containing a succinct and very full statement of the facts which the defendant company expected to prove by the absent witness, and the same ivas read to the jury as the evidence which he would give if present in person. Moreover, the case appears to have been pending in the federal court on removal from the si ale court for nearly nine months before the trial took place.

Ample time had elapsed, therefore, to obtain tbe deposition of the absent witness, which should have been taken, as he appears to have been a nonresident. Under these circumstances, the trial court very properly required the trial to proceed. But, in addition to what ha's been said, it should be observed that the rule is well established in the federal courts that a motion for a continuance is addressed to the discretion of the trial judge, and that his action on such a motion will not be reviewed on appeal or on writ of error. Davis v. Patrick, 12 U. S. App. 629, 635, 57 Fed. 909, 6 C. C. A. 632; Sims v.

Hundley, 6 How. 1, 5, 12 L. Ed. 319; Insurance Co. v. Hodgson, 6 Cranch, 206, 207, 3 L. Ed. 200; Thompson v. Selden, 29 How. 194, 198, 15 L. Ed. 1001; Electric Co. v. Dick, 8 U. S. App. 99, 52 Fed. 379, 3 C. C. A. 149; Drexel v. True, 36 U. S. App. 611, 74 Fed. 12, 20 C. C. A. 265. In the present case, however, we should be compelled to hold that the discretion of the trial court was properly exercised, even if the action complained of was subject to review.

Considerable space is devoted in the briefs to the discussion of the question whether the plaintiff below and Henry Loose, the defendant’s superintendent or foreman, were fellow servants; but, as we view the case, the consideration of that question is unnecessary.

The action was tried below on the theory that they were fellow servants, and that the defendant could not be held liable for the negligent acts of its foreman unless they were committed while he was discharging some personal duty of the master, such as providing suitable material for the construction of the scaffold or proper tools and appliances wherewith the plaintiff was to work.

The charge, considered as a whole, advised the jury that there was no ground upon which a recovery could be had by the plaintiff unless it appeared that the joist or plank which broke and precipitated him to the ground was defective in some of the respects pointed out by the various witnesses who testified on that subject, nor unless it appeared that the defendant had failed to exercise ordinary care in providing such defective material.

The charge proceeded upon the theory (which was obviously correct) that whoever may have provided the lumber for the scaffolding was in that respect discharging a personal duty of the master, and that the master was responsible for such person’s negligence in providing material, without reference to his grade or rank in the employer’s service. Balch y. Haas, 36 U. S. App. 693, 699, 73 Fed. 974, 20 C. C. A. 151.

Complaint is made because the trial court failed to direct a verdict in favor of the defendant company, but as there was considerable testimony (enough, at least, to warrant a finding) that the joist or board which broke was defective in the respect alleged in the petition, and as this joist was a part of the material for the scaffolding which it was the personal duty of the master to supply, it is not apparent that the trial court could have done otherwise than to submit the issue concerning the defendant’s negligence in supplying the material to the decision of the jury.

The issue in question was submitted, and the finding was against the defendant, under instructions which advised the jury that, in the matter of providing material for the scaffolding, the defendant was only required to exercise ordinary care; and that the plaintiff on his part, when he went out on the plank, was bound to exercise ordinary watchfulness; and that the defendant could not be held liable if the jury believed that the plaintiff might have discovered the defective condition of the board by ordinary circumspection, before he went out on the same and trusted his weight thereto.

These were questions for the jury, in view of the character of the evidence, and they seem to have been submitted under directions from the court that were substantially accurate.

Perhaps the most important question in the case, although it is not argued specially in the briefs,' is whether the lower court erred' in refusing to give an instruction to the effect that if it appeared that the defendant provided a sufficient quantity of sound and suitable lumber for the erection of the scaffolding, and that the selection of the defective joist which broke and occasioned the injury was the act of some fellow workman of the plaintiff, then there could be no recovery.

This instruction embodied a principle which has been approved In a number of decisions, and has passed into some of the text-books.

It is held in some cases, with respect to the building of ordinary scaf-foldings and other simple structures of that nature, which laborers and mechanics are in the habit of ‘constructing for themselves, because the construction thereof does not require the exercise of more skill or scientific knowledge than is usually possessed by the ordinary laborer or artisan, that the master is under no obligation to do more than to supply a sufficient quantity of material which is reasonably well adapted for the making of such structures, and that he is not responsible for an injury to one of his servants which is occasioned through the fault of another fellow servant, who erects the structure insecurely, or who selects a defective piece of timber and places it therein, when there is an abundance of sound timber at hand which might be selected and used.

An allusion was made to this principle, by this court, in a recent case (Manufacturing Co. v. Johnson, 60 U. S. App. 661, 669, 670, 89 Fed. 677, 681, 32 C. C. A. 309), and it has also been recognized by other courts (Colton v. Richards, 123 Mass. 484. 487; Ross v. Walker. 139 Pa. St. 42, 21 Atl. 157, 159; Bowen v. Railway Co., 95 Mo. 268, 277, 8 S. W. 230; Sims v. Barge Co., 56 Minn. 68, 73, 57 N. W. 322; Marsh v. Herman, 47 Minn. 537, 539, 50 N. W. 611; Beeslev v. F. W. Wheeler & Co., 103 Mich. 196, 61 N. W. 658, 27 L. R. A. 266; McKinney, Fell. Serv. p. 77; Shear. & R.

Neg. [5th Ed.] § 195, and cases there cited). The case at bar does not seem to have been tried, however, upon the theory that the joist on which Hess was sitting when he fell was defective, and that some fellow workman inadvertently selected and placed it in the scaffold.

No such defense was pleaded in the defendant’s answer, which contained simply a general denial of the allegation that it had furnished rotten and defective materials for the construction of the scaffolding, and in addition thereto a special plea that the plaintiff’s injuries were occasioned by his own fault, “by the manner in which he conducted himself at the time of the receipt of said injuries,” and that, if he had exercised reasonable care, he would not have been hurt. The proof introduced was in accordance with these allegations of the answer.

The defendant called but two witnesses, one of them being its own attorney, and the other an alleged eyewitness of the accident. By the latter witness it showed, in substance, that the joist on which Hess was sitting was entirely sound, and did not break, but that it remained in the scaffolding as a constituent part of the structure after the accident, and that in point of fact Hess lost his balance, and fell accidentally, while attempting unnecessarily to catch a small piece that had split off! from the end of the joist on which he was sitting, as he was driving a nail.

This was the defense upon which the defendant appears to have placed its chief reliance before the jury. A section, as it was claimed, of the very piece of timber on which the plaintiff was sitting when he fell, was produced in court, and identified by one of the defendant’s attorneys as being a piece of the alleged defective joist that had been pointed out to bim shortly after the accident, and which he had directed to be sawed off and preserved, so as to establish on the trial that it was sound and suitable for the scaffolding, and that the claim that it was rotten or otherwise defective was a mere pretense.

In its charge to the jury the court pointed out the issue of fact aforesaid, which seems to have been the one that had been discussed by counsel, and directed the jury to determine whether-the joist broke because of its rotten condition, as the plaintiff claimed, or- whether, the joist being sound, the plaintiff fell through sheer accident, while attempting to do an unnecessary act, namely, catch a piece of falling timber, as the defendant had contended.

Inasmuch as the issue last stated was the. one actually litigated before the jury, and as the defendant neither pleaded that the accident was due to the fault of a fellow servant nor admitted that the joist might have been unsound, and inasmuch as it did not show how much material it had bought for the scaffolding, or what care it had exercised in selecting it, we are of opinion that the judgment below ought not to be disturbed because of the failure to give the aforesaid instruction.

In the case in hand, the instruction does not appear to have been pertinent to the defenses outlined in the answer, nor to the proof which was offered in support thereof. The court was justified, we think, in submitting the case to the jury on the issues that had been tried and specifically pleaded. It is further insisted that an error was committed by the trial court in instructing the jury as follows: “It lias been stated by counsel here frequently that the law is that the defendant was bound to furnish safe materials. Now, that is not the law, that they are bound to furnish absolutely safe materials.

The law is that the defendant was bound to use ordinary care to furnish reasonably safe materials. They were not insurers absolutely of the safety of any timber that the plaintiff had to work upon, but they must use such care as an ordinarily careful and prudent man would use under similar circumstances.

If you should find, gentlemen of the jury, from a fair preponderance of all the evidence in this case,. that it was the duty of the plaintiff in this case to go out upon this plank, and that it was. necessary for him to do that in order for him to properly fasten these two planks together, and that he went out upon that plank in the performance of his duty, and while there,performing his duty, it "broke and let him fall to the ground without any fault of his, and through some defect in the plank as described in the testimony, then it would be your duty to find a verdict in behalf of the plaintiff for such damages as you might find from all the evidence the plaintiff was entitled to.” That part of the instruction which we have italicized is criticised by the defendant’s counsel, upon the ground that it withdrew from the jury the question whether the defendant had been guilty of culpable negligence in furnishing defective material, and simply required them to ascertain whether the plank was rotten, without reference to the degree of care that had been exercised in providing it.

When the whole paragraph which is above quoted and other parts of the. charge are read, however, it is obvious, we think, that the criticism in question is without merit. The court plainly informed the jury that in the matter of providing materials the defendant was only bound to exercise ordinary care; that it was not an insurer of the safety of any of the materials which it had provided; and, by necessary in-tendment, that the defendant could only be held liable for a failure to exercise an ordinary degree of care in that respect.

The concluding paragraph of the instruction, when read in connection with what precedes it, manifestly did not leave the jury at liberty to And against the defendant if they were simply satisfied that the joist was defective, hut it required that they should be further satisfied that the defendant had not exercised reasonable or ordinary care in providing it.

The meaning of an instruction should be determined by considering it as a whole, since many a charge which, as a whole, is unexceptionable, would prove faulty if appellate courts indulged in the practice of wresting a paragraph from its context, and condemning it without reference to what precedes or follows it. Railway Co. v. James, 12 U. S. App. 482, 487, 6 C. C. A. 217, 56 Fed. 1001; Railroad Co. v. Gladmon, 15 Wall. 401, 409, 21 L. Ed. 114.

We cannot act on the presumption that the jury were misled by the instruction in question, when it appears that they were twice advised by the court in unmistakable terms that the defendant company had discharged its full duty to the plaintiff, in the matter of providing materials for the scaffolding, if it simply exercised ordinary care in selecting them. The judgment below should be affirmed, and it is so ordered.