Sowden v. Idaho Quartz Mining Co.
Before: Myrick, Sharpstein
Synopsis
Attornev of Record—Associate Counsel—Service.—The complaint was signed, “G. D. B., plaintiff's attorney.” On the trial G. D. B. and II. V. R. appeared as counsel for the plaintiff. Service of motion for a new trial was accepted hy “ H. V. R., one of the attorneys for the plaintiff.” Service of notice of appeal was admitted by “ G. D. B. and H. V. R., plaintiff’s attorneys.” Service of the transcript was admitted by “ G. D. B. and H. T. R., attorneys for plaintiff and respondent.” Transcript was indorsed “G. D. B., Esq., and H. V. R., Esq., attorneys for respondent,” and briefs filed with similar indorsements. Then G. D. B. files a separate brief, making the point that the notice of motion for new trial had not been served upon himself as attorney of record. Held, that the objection came too late.
Master—Servant.—In an action by an employe for injury incurred in the course of the employment, the Court, at the request of the plaintiff, instructed the jury that “The servant assumes no risks, except such as existed at the beginning of the employment, and such as are incidental to the business.” Held, that the Court should have added words equivalent to, “ or which existed during the course of the employment, of which the employe had knowledge or was bound to have knowledge.”
Id.—Id.—Damages—Hegligence—Instruction. — Certain instructions defining the liability of master to servant for injury incurred in course of employment approved. (The instructions will be found in statement of the case.)
Evidence — Reputation — Hegligence. — The issue being, was E. powder a reasonably safe powder, and did the defendant exercise due care in ascertaining its safety? a witness was asked,—the defendant objecting—“ Wliat was the reputation of E. powder as a safe or dangerous compound?” Held, error; it not appearing that the reputation asked for ever came to the knowledge of defendant, or that it existed at any place where defendant was bound to inquire.
Id.—Expert—Witness.—A practical miner who has used blasting powder for years, and used a large amount of a certain powder, can bo asked his opinion, based upon his experience, as to the safety of that powder, by virtue of the provisions of subdivision 9, § 1870, of the Code of Civil Procedure.
Opinion — Myrick
Myrick, J. : This action was brought to recover damages for personal injuries to plaintiff, caused by the premature explosion of blasting powder, known as Excelsior powder, manufactured by one Haffenager. Under the pleadings in this case the substantial issues were: ■
1. As to the safety of the Excelsior powder as a blasting powder.
2. As to whether the defendant exercised due care in supplying a reasonably safe powder, and in permitting the Excelsior powder to be used by its -workmen.
3. Whether the plaintiff knew or ought to have known of the qualities of the powder, and whether he exercised due care in its use.
4. Whether the defendant provided proper appliances for the use of the powder.
The Court fully and clearly instructed the jury as to the relations existing between plaintiff and defendant as master and employe, the obligations resting upon each toward the other, and as to the care proper to be exercised by each.
Upon the trial, plaintiff asked the witness Price whether Ilaffenao-er was a skillful chemist or scientist. Plaintiff also asked O the witness Drisco as to the reputation of Haffenager as a scientist or chemist. Notwithstanding defendant’s objection, "the Court permitted ■ the questions to be asked. There was no error in these rulings, as the defendant had by its answer tendered the issue “ that said Haffenager was reputed to be and was an accomplished chemist and scientist.” Plaintiff asked the question, “ What was the reputation of Haffenagcr’s powder as a safe or dangerous blasting compound ? ” The witness to whom this question was put, was a quarryman at the Oakland quarry. It does not appear that the reputation referred to by the inquiries to' him ever came to the knowledge of defendant or its officers or agents; nor that it existed in any place where it would be the duty of defendant to have made inquiries; nor [451]did plaintiff offer to place that reputation in any locality; the witness may have known the reputation of tlie powder at Oakland, or in some foreign country. The reputation of the powder was not directly in issue. Its safety was the point in issue. Its reputation was material only in the light of showing whether defendant used proper care in ascertaining its safety. The admission of the answer to this question was error.
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