Klingenstein v. Miehle Printing Press & Manufacturing Co.

RICHARDS, J.

This is an appeal from a judgment in plaintiff’s favor and against the" defendant Miehle Printing Press and Manufacturing Company for the sum of fifteen thousand dollars for damages arising out of the death of one Frederick Klingenstein, the husband of plaintiff, through the alleged negligence of said defendant. As to the codefendant McGaraghan the verdict and judgment exonerated him from liability.

There is no substantial dispute as to the facts of the case. On and prior to the seventh day of August, 1913, the defendant Miehle Printing Press and Manufacturing Company was the owner of a printing-press described as a No. 1 Pony Miehle Printing-press, which it on said day contracted to sell and deliver to the firm of Lambert

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McKeehan, printers, at Eureka, the purchase price to be paid in installments during a period of two years thereafter, title to remain in the seller until the installments were fully paid. On August 27, 1913, the said defendant Miehle Printing Press and Manufacturing Company, in contemplation of the delivery of said press to the purchaser, entered into a written contract with its codefendant McGaraghan, a dray-

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man of Eureka, wherein the latter offered to “unload, haul, and handle” said press and to convey the same “from the steamer to the pressroom of Lambert & McKeehan for the price of $7.50; we to furnish all necessary ropes, planks, tools, etc., and we to be responsible for damages done to property or persons while said press is in our care. And we agree to allow use of ropes, planks, tools, etc., free of charge to your erector while erecting press. Any labor desired by you to assist your erector in setting press will be furnished you by us on request at fifty cents per hour per man.” This offer, which was upon one of the printed forms of the said Printing-press Company, was negotiated, signed, and accepted by the parties thereto at the pressrooms of the said purchasers of the press, and after an inspection of the premises by McGaraghan, accompanied by the agent of his said codefendant, during which it appeared that the press was to be delivered through a back way to the press-room and admitted to the floor thereof through the back door. At the time this contract was entered into none of the immediate parties to it knew where the press was to be set up in the pressroom, since that, apparently, was a matter to be determined by the seller’s erector, who was later to appear upon the scene. The press arrived at- the steamer' landing in Eureka on or about October 6, 1913, and on that day also one J. C. Nicholson also reached that city. Said Nicholson was an employee of the said defendant Printing-press Company, charged with the duty of erecting and installing said press. He had been engaged in the business of erecting printing-presses by his said employer for some eight or nine years,, and his duties, as defined by himself when on the witness-stand on behalf of his said employer, were “to assemble the machine..and put it in running order, handle the various parts of it. ’ ’ In the performance of these duties, according to his own statement, he was to uncrate the several parts of the press for the purpose of assembling, putting in place, and erecting the same. Nicholson had been sent to Eureka by his said employer in conformity with its agreement with the purchasers of the [press providing that “the vendor agrees to send a competent man to erect and put said press in first-class running order.” On reaching Eureka, Nicholson went to the pressroom and there determined' the place upon the floor thereof where the press when erected was to stand, and directed the removal of