McGuire v. Miller & Lux Inc.

RICHARDS, J., pro tem.

This is an appeal from a judgment in plaintiff's favor in an action for damages for personal injuries and from an order denying the defendant's motion for a new trial. The action was originally commenced in the superior court of the county of Kern. It was

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removed to the United States district court upon application of the defendant, Miller & Lux Incorporated, a Nevada corporation, but was subsequently remanded to the court and county in which it had been commenced, for trial. The defendant Livingston, joined with Miller & Lux Incorporated as a defendant for the reason that he was a coemplpyee of the latter with plaintiff and as such was in charge of the tractor in connection with which the plaintiff received his injuries, was never served with process and did not appear. The defendant Miller & Lux Incorporated answered denying negligence and pleading contributory negligence on the part of the plaintiff. The cause was tried before a jury. At the conclusion of the plaintiff’s case the defendant moved for a nonsuit, which motion was denied. The defendant offered no evidence and the case went to the jury upon the plaintiff’s proof, whereupon the jury returned a verdict in plaintiff’s favor fixing his damages at the sum of five thousand dollars, for which judgment was entered. From this judgment and from the order denying its motion for a new trial said defendant prosecutes this appeal.

The facts essential to a determination of the main questions presented upon this appeal are as follows: The accident out of which the plaintiff’s injuries arose happened on January 15, 1912, and the case therefore comes within the provisions of the Roseberry Act (Stats. 1911, p. 796). The plaintiff had entered the employ of the appellant about two months before the accident. He had been raised on a cattle ranch, was about twenty-four years old, and prior to the time of his said employment by the defendant had little experience with machinery. He was assigned to work as an oiler on a caterpillar tractor which was being used by the defendant at the time of the plaintiff’s injuries in transporting products from place to place. Its machinery was rather intricate and its operation required the services of a mechanical engineer and of an oiler when in use. The codefendant Livingston was the engineer in charge of the .machine, from whom the plaintiff was instructed to take his orders. The duties of the plaintiff required him to keep all portions of the machine properly lubricated, and in order to do this it was necessary at times for him to walk by the