GRIFFIN WHEEL CO. v. SMITH, 173 F. 245

GILBERT, Circuit Judge (after stating the facts as above). It is assigned as error that the court admitted in evidence the testimony of Furrer, the carpenter, as to the reason why he told the foreman that the bridge was dangerous at the time when it was being constructed.

To that question lie answered: “Iíecauso when ihe bridge was up. when she got loose out of that hook, there was nothing — if it come unhooked, there was nothing — to hold It from falling either way; and, second, I didn't see any appliance or dog or ratchet on the cogwheel.” It was proper to permit the witness to testify that he warned the foreman of the plaintiff in error, at the time of constructing the bridge, that the bridge and its appliances as constructed were dangerous. But it is urged that it was error to permit him to testify as an expert as to the reasons why lie considered it dangerous.

The court, however, was careful to rule that the testimony was admitted only for the purpose of bringing home to the company knowledge of the defective construction of the drawbridge and its appliances, and for the purpose of presenting to the jury the question whether or not the plaintiff in error used such care as is ordinarily used by reasonably prudent persons under like circumstances; and in instructing the jury the court' said of this testimony: “It was not admitted as having any tendency to establish that the structure or appliances were not sufficient or properly made, for that is a question to ho decided by you. it, was admitted solely for the purpose of bringing home to t.he delendant knowledge of the condition of insufficiency, if it w.as Insufficient.'’ As safeguarded by the ruling of the court, and the instruction to the jury, we cannot see that there was error in admitting the testimony.

The witness having detailed fully the facts as to the nature of the construction and its defects as he saw them and the warning which he gave to the foreman, it was not improper to permit him to state the reason why lie considered them dangerous. It was but another way of pointing out the defects which he observed in the structure, and to which he directed the attention of the plaintiff in error. It is earnestly contended that the court erred in excluding from the evidence a certain written statement purporting to have been made by Walter Grunncrt,"a witness for the plaintiff in error.

The statement was dated about four months after the date of the accident, and seven months before the trial. It consisted of several detached sheets of typewritten paper, the last of which only was signed by the witness. The witness identified the last sheet of the statement, but, on reading the other pages, testified that he could not say that it was an exact copy of what: he had signed. He was interrogated as to the several distinct portions of the statements which were claimed to be contradictory of his testimony, and was asked whether or not he had so stated.

He made no denial of having made any of the said statements so attributed to him. Some of them he admitted that he had made. As to one of them, he testified that he did not remember that he had made it, but that he did not think the statement was true. Counsel for the plaintiff' in error finally offered the whole statement in evidence “for the purpose of impeaching- the testimony of the witness/’ and to the offer for that purpose an objection was sustained.

The court said: “Regardless of tlae objection, such statements as are in contradiction of wliat the witness now says are competent, for the xrarpose of showing the defendant may have been taken by surprise, but to go over the whole statement where it is not in conflict is not competent. Such statements as he now contradicts, you may call to his attention.” If a witness unexpectedly gives material evidence against the party who calls him, he may, for the purpose of refreshing his memory or awakening his conscience, be asked if he has not made a certain contradictory statement.

If he denies that he made it, a situation arises upon which the authorities are divided; many cases holding that the fact that he made it cannot be show.; in evidence. But the rule which is sustained, as we think, by the weight of authority ánd the better-reasoning, and which this court has heretofore expressly approved in Tacoma Ry. & Power Co. v. Hays, 110 Fed. 496, 49 C. C.

A. 115, is that, where a party has been surprised by the testimony of .his own witness, he may, in the discretion of the court, be allowed to offer evidence to show that, prior to the trial, the witness made a contradictory statement; and this, not for the purpose of impeaching the general character of the witness, but for the protection of the party who calls him. The question of the admissibility of such testimony resting, as it does, in the discretion of the court, we can discover in the record no ground for holding- that discretion was abused in the present case.

The jury, in view of the admissions of the witness as to his prior statements, had the benefit of practically all the contradictory testimony that his alleged prior statement contained. We find no error in the exclusion, of the statement from the evidence. The plaintiff in • error contends that the trial court erred -in sustaining the objection to the question, asked the defendant in error, as to whether he had not observed Grunnert, at different times letting down the bridge, holding his hand on the crank.

But that ruling of the court is not among the assignments of error, and it is not of the character of those of which this court should take cognizance in the absence of assignment.

Error is assigned to the refusal of the court to give the jury certain instructions to the effect that if they found from the evidence that the defendant in error knew, or by the exercise of ordinary prudence could have known, that it was dangerous to operate the drawbridge, or that the danger of its use was alike open and obvious to him and the plaintiff in error, there could be no recovery, and that, by continuing in the employment of the plaintiff in error without complaint,, the defendant in erroi assumed the risks and dangers of the employment which he ícllw, or wnich he should have known.

But, while-the instruction so requested might properly have been given, we are of the opinion that the charge which the court gave to the jury sufficiently covered all the essential features of the case, and that the omission to direct their attention more prominently' to the rule that one who enters the employment of another as his servant assumes the risks of defects resulting from the master’s negligence, when those defects are obvious or plainly discernible by a person of ordinary prudence in the servant’s situation, was not error for which the judgment should be reversed.

The court charged that it was the duty of the defendant in error to observe the surroundings, and to use ordinary care to ascertain the state of repair and condition of the drawbridge contrivances, to heed the instructions given him, and to obey the orders of those selected to direct him, and that, if he failed in those respects, he could not recover; that, if he assumed the risks, he could not recover; that, if the accident was one which reasonable prudence could foresee or reasonable skill avoid, lie could not recover; and that the burden was upon the defendant in error to show that the plaintiff in error had failed in its duty to provide him a reasonably safe place to work and reasonably safe appliances to work with. “To supply these,” said the court, “was a positive duty, which the defendant could not avoid by delegating it to some one in charge of its works, or in any other way, and thereby relieve itself of liability, and the plaintiff had the right to assume, if he had not discovered to the contrary, or could not have discovered to the contrary by the use of ordinary care, that the appliances provided by the defendant, in so far as they related to the plan and construction, were sufficient for his protection.” The foregoing is but an outline of the instructions given to the jury, the details of which it is unnecessary to repeat.

It is contended that the court erred-in refusing to instruct the jury that if they found from the evidence in the case that the plaintiff in error had provided another workman to assist the defendant in error in lowering the drawbridge, and that the latter attempted to lower the same without such assistance, he assumed the risk thereof. The objection to this requested instruction is that there was no evidence to justify it.

The testimony of Grunnert was that it was customary for one man to do the work; that of the superintendent, Duffles, was that the handle of the crank was only from eight to ten inches long, which would indicate that it was intended for one man; and that o f J?urrer was that one man could raise or lower it. The only testimony as to two men doing the work was that of Leonard, who testified that he liad seen two men sent to do it; but he also testified that it was not impossible for one man to raise and lower the drawbridge, and that he had done it himself. We find no error for which the judgment should be reversed.

It is accordingly affirmed.