Ronconi v. Northwestern Pacific Railroad

RICHARDS, J.

This is an appeal from a judgment in favor of the plaintiff and also from an order denying a new

[561]

trial in an action for damages arising out of injuries sustained by the plaintiff as one of the defendant’s employees while engaged in the operation of a handcar upon its railroad line.

The handcar in question was one of regular standard make equipped with wooden handles which were used by the men in propelling the car. At the time of the accident which caused his injuries the plaintiff was standing on the front end of the car facing backward, and was engaging in “pumping” or pulling upon one of the handles used in operating the car, when said handle broke, and he fell backward in front of the car, which ran over him and seriously and permanently injured him.

The evidence is strongly conflicting as to the condition of the handle at the time of the accident. The appellant does not question its sufficiency, but rests his appeal upon certain alleged errors in the instructions of the court to the jury.

The first instruction assailed in the briefs of counsel for appellant is one which reads as follows: “You are further instructed that the law does not permit an employer to take any chances as to the safety of his employees.” The appellant insists that this instruction constitutes an erroneous statement of the law, and also that it is contradictory to other instructions given by the court. The appellant, however, concedes that the court quite fully instructed the jury upon every phase of the case, and that with the exception of the particular instructions it criticises the court correctly laid down the law as to the degree of care which an employer should exercise in relation to his employees and to the appli-. anees with which they were expected to work. The instruction above quoted appears to have been taken from the language of the decision of the supreme court in the case of

Brown

v.

Sharp-Hauser Contracting Co.,

159 Cal. 89, 94, [112 Pac. 874]. Its precise words were used in that case as applying to a state of facts where a foreman, representing the employer in relation to its employees, in the presence of a known danger concluded to “take a chance.” The evidence in the case before us discloses a similar situation, for there is testimony to the effect that the foreman of the handcar crew had his attention directed