Robinson v. Smith-Booth-Usher Co.

CONREY, P. J.

This is an action wherein the plaintiff seeks to recover damages for personal injuries sustained by

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him while employed by the defendant in its machine-shop; it being alleged that these injuries were caused by the negligence of the defendant. The answer denied all negligence on the part of the defendant, and also pleaded contributory negligence on the part of the plaintiff. The jury returned a verdict for the defendant and judgment was entered accordingly. The plaintiff appeals from the judgment and from an order denying his motion for a new trial.

. Appellant first insists that the evidence proved negligence on the part of the defendant and failed to prove contributory negligence of the plaintiff. There was a substantial conflict in the evidence upon these questions, and the evidence favorable to the defendant, if believed by the jury (as it was), is sufficient to support the verdict.

Appellant directs attention to certain instructions given by the court to the jury at the request of the defendant. It is claimed that by these instructions the jury was told that if the plaintiff was guilty of a want of ordinary care in the slightest degree contributing directly to his injury, plaintiff could not recover, regardless of the negligence of the defendant or its servant. Reliance is placed upon the fact that at the date of this accident, November 25, 1911, there was in force a statute relating to the liability of employers to their employees (Stats. 1911, p. 796), wherein it was provided that in actions of this class, “the fact that such employee may have been guilty of contributory negligence shall not bar a recovery therein where his contributory negligence was .slight and that of the employer was gross, in comparison, but the damages may be diminished by the jury in proportion to the amount of negligence attributable to such employee.” In addition to the instructions complained of by .appellant, the court gave to the jury an instruction requested by plaintiff, stating the doctrine of contributory negligence in accordance with said statute. At the close of his reading of instructions to the jury, the judge suggested that there was an inconsistency in the instructions relating to that issue. He then specially directed the attention of the jury to the instruction which he had given at plaintiff’s request and read it to them a second time, with the further direct statement that this was a correct statement of the law. In view of this action by the court, we deem it .unnecessary to examine 4he instructions complained of. Assuming that they were