Anderson v. Hinshaw
Before: Haynes
Synopsis
Negligence—Pall of Derrick Mast—Interference with Guy Ropes— Conflicting Evidence.—Where the plaintiff was injured by the fall of a derrick mast upon which he had climbed for the purpose of adjusting a block and tackle, and there is evidence tending to show that the defendant was negligent in attempting to change one of the two guy ropes by which the mast was sustained, the decision in favor of the plaintiff cannot be disturbed by reason of conflicting evidence to the contrary.
Id.—Overruling Motion for Nonsuit.—Where there is sufficient testimony to justify the court in submitting the facts to a jury, it is proper to overrule a motion for a nonsuit.
Id.—Appeal—Instructions not Excepted to.—Instructions given by the court to the jury which were not excepted to cannot be considered upon appeal
Id.—Order Denying New Trial—Discretion.—Where it does not appear that the court abused its discretion in denying the motion for a new trial, its order will not be interfered with upon appeal, although, if the motion had been granted, the appellate court could not have disapproved the order.
Haynes, C. Appeal by defendant from the judgment and an order denying his motion for a new trial. This action was brought to recover damages for personal injuries alleged to have been sustained through the negligence of the defendant. A jury trial was had, and a verdict returned for the plaintiff, assessing his damages at one thousand dollars. Appellant contends for a reversal principally upon the ground that the evidence is insufficient to justify the verdict.
The plaintiff was employed by the defendant as a farm hand, and, whilst so employed, he ascended a derrick mast, used in hoisting hay, for the purpose of adjusting a block and tackle; while so engaged the mast fell, as plaintiff alleges and contends, through the careless and improper interference by the defendant and his foreman with the guy ropes by which the mast was kept in position, the fall resulting in breaking defendant’s leg above the knee.
The evidence is far from satisfactory as to the imme[684]diate cause of the fall of the mast. At the time the plaintiff ascended the mast it was supported by two guy ropes, a third rope hanging loose from the top of the mast. Mr. Albert, the defendant’s foreman, directed the plaintiff to fasten the third guy rope to a stake before ascending; but defendant said it was not necessary, as the mast was supported by the other two ropes, and he wished to use the hanging rope to climb the mast.
The plaintiff was a sailor, and had followed that occupation for six years, and found no difficulty in reaching the top of the mast. After doing some work at the top, he descended a few feet, and seated himself on the cross-arm, and sat there while Mr. Albert went to a building a hundred yards or more away to obtain a small rope. The defendant was not present when he went up the mast, but returned with Mr. Albert.
The plaintiff testified that the defendant and his foreman pulled over the derrick mast, causing it to fall; that Mr. Hinshaw went over to the loose rope that he had used in climbing the mast, and took it over to where one of the guy ropes was fastened to a post; that Hinshaw and the foreman both took hold of the loose "rope, and pulled the mast right down; that both were pulling on the rope when the mast fell, but for what purpose they pulled the rope he did not know, and that Mr. Albert was trying to untie the knot from the stick that was down in the ground. •
The defendant and his foreman denied having pulled upon the rope, or that they did anything to cause the mast to fall; that Mr. Albert did not touch the taut part of the guy rope at any time; that he was engaged in untying a small rope from the end of the guy rope, and not interfering with the knot by which it was secured to the post. The defendant testified that he knelt down, and held the guy rope that was fastened to a fence post, but did not pull it or work with it, and that he did not at any time take hold of the loose guy rope, or walk with it to the fastened guy near which he and his foreman were standing when it fell.
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