McFaul v. Madera Flume and Trading Co.

THE COURT.

The plaintiff, an employee of the defendant, recovered judgment against it for the sum of three thousand five hundred dollars, as damages for personal injuries suffered by him, in the course of his employment, by reason of a defective machine. This appeal is prosecuted from an order denying defendant’s motion for a new trial.

It is first urged that the complaint does not state a cause of action, the specific objection being that it fails to allege that

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“the plaintiff was injured while in the necessary and proper discharge of his duty.” No specific demurrer was directed to this alleged defect in the pleading, and in the absence of a special demurrer it will he held that the complaint is sufficient in this regard.

The following instruction is assailed: “If you find from the evidence that the accident through which plaintiff was injured resulted from an inherent defect in the machinery, as alleged in the complaint, which might have been discovered by the exercise of reasonable diligence on the part of defendant, and that plaintiff did not know, and was not in a position to have found out, such defect, in the usual and ordinary course of his employment, then you should find for the plaintiff and assess the amount of his damages.” This instruction is assailed as not comprising all the elements of fact which were necessary to justify a verdict in favor of plaintiff. But, as this court has often held, the instructions must all be read and considered together, and here, in other portions of the charge, we find the jury fully instructed as to other elements of fact necessary to be found by them in favor of plaintiff before a verdict could be given him. By the instruction quoted, the minds of the jurors were directed alone to a single element of fact,—to wit, the defect in the machinery. Other instructions were equally direct and explicit as to other facts involved in the case, and considering all the instructions together, the court is convinced that the jury were not misled by the Instruction given.

Another error complained of is, that the court permitted the witness Palmer to testify as to the relative strength of wrought and cast iron as the material for the part of the machine in question. In this there was no error. The evidence was pertinent and material, and the witness was qualified as an expert to give his opinion with reference to it. (Code Civ. Proc., sec. 1870, subd. 9.) Upon a careful consideration of the record we are not prepared to say that the verdict of the jury was excessive, or that the evidence was insufficient to support the verdict.