The action of the court in its charge to the jury, in denying a motion to set aside the verdict as against the evidence, in finding certain facts set forth in the finding, and in refusing to find other facts as requested, was assigned as error by the plaintiff. *Page 646
The jury were fully and correctly instructed at one point in the charge as to the master's liability for an injury to his servant when sustained in the course of his employment.
In another passage of the charge which related to the plaintiff's use of the elevator with the express or implied permission of the defendant, the jury were instructed as follows: "If he was using it by the express or implied permission of the master for the purpose of going to his work, it was then the master's duty to see that it was reasonably safe for the purposes of an elevator. Now, express permission, you will understand, would be a statement by the master, or by some person in authority, to the employees to use the elevator. An implied permission may be found by you to use the elevator if the elevator was habitually used by the employees in going to the third floor, with the knowledge on the part of the defendant that it was so used, and the defendant made no objection or prohibition of its use."
The jury were thus correctly instructed as to the principles of law applicable to this subject. But the plaintiff contends that these instructions deprived him of his right to go to his work by the elevator, and placed him in the same category with mere licensees, with whom no contract of service existed, besides depriving him of the protection the law provides.
The place where the accident occurred was a large, brick, factory building at Montville. There were three floors to the building. The Climax Company occupied the third, or top, floor. At the time of the accident there were two flights of stairs leading to the floor occupied by the defendant company. There were also two freight elevators. The defendant offered evidence to show that the way provided for the employees to go up and down to their work was by the stairways; that *Page 647 the employees were forbidden to ride up in the elevators; that there was a sign upon the elevators forbidding the employees to ride upon them; and that the plaintiff had been warned personally not to ride upon the elevators.
The plaintiff denied that he had been warned not to ride upon the elevator, and also offered evidence to prove, and claimed to have proven, that the elevator had been constantly used by the employees of the defendant in going to and from the third floor with the knowledge of the defendant, and that an implied permission or license should be found on the part of the defendant for the plaintiff to use the elevator in going to and from his work.
The issue thus presented was one of the important questions for the jury to determine. A charge should be read in the light of the evidence and claims of the parties. When so considered in the present case, it is plain that the jury were properly instructed upon this branch of the case.
In paragraph four of the first count in the complaint, the plaintiff averred that when using, or attempting to use, the elevator, it was suddenly jolted and started upward, throwing Roma to the floor and injuring him. In the second count it was alleged that Roma was injured while he was in the line of his duty and in the course of his employment, and that in the exercise of all due care, he stepped, entered and climbed into the elevator to go to the place of his employment on the top floor of the mill building. The only direct evidence upon this subject was that of the plaintiff, who testified that he got onto the elevator on the second floor of the building, when the elevator was moving upward; that he ran and caught the elevator and jumped on. There was no evidence to sustain the allegation set forth in the first count in the complaint, that the elevator suddenly *Page 648 jolted and started upward, thereby throwing Roma to the floor. Under these circumstances, in the absence of any request to charge, the court was fully warranted in instructing the jury: "I do not understand that any claim is made before you that the plaintiff can recover on the first count. And therefore it is the second count to which I direct your attention."
At one point in its charge the trial court said: "On the other hand, it is insisted on the part of the defendant that this plaintiff had been, at least upon one occasion, directly told not to use the elevator in going to and from his work; that there was a notice posted upon the elevator, or a portion of it, warning the operatives or employees against using it for any purpose except carrying freight; that the plaintiff knew that he was forbidden to use the elevator; . . . and that he, having been warned and told not to use the elevator, it was entirely his own fault that he was injured. It is unnecessary for me to state, in connection with the rules of law governing the case, that if you find the facts as so stated it will be your duty to find a verdict for the defendant."
The jury could not have been misled by the words "if you find the facts as so stated it will be your duty to find a verdict for the defendant." The language just referred to, taken as a whole, could not have given the jury the impression that the statement made embraced facts actually proven. It is reasonable to infer that the jury must have understood that the expression, "the facts as so stated," referred to the claims of the defendant stated in the first part of the above quotation. Taken in this way, the remark was not erroneous.
It is also urged that the question whether or not the plaintiff was forbidden to use the elevator and disobeyed the orders of his employers in using it, was not directly raised by the pleadings. *Page 649
The plaintiff had the burden of proving the affirmative of the allegations in his complaint; but the law permitted the defendant, by appropriate evidence, both to meet and overcome the plaintiff's evidence in the affirmative, and to establish the negative as true. To accomplish this the defendant was not to be restricted to a mere verbal denial, but might make that denial effectual and conclusive by proving such a state of facts as would show either that the affirmative could not be true or that the negative must be true. If the plaintiff had been forbidden to use the elevator and disobeyed, and there was a notice posted upon the elevator warning the operatives not to use it for any purpose except carrying freight, he could not have been using the elevator when he was injured in the performance of his duty, and by the orders and requirements of the defendant. See Morehouse v. Remson, 59 Conn. 392,395, 396, 22 A. 427. It is apparent that the charge to the jury upon this branch of the case was adapted to the evidence, issues, and claims of the parties.
The plaintiff claims that the instructions of the court contain errors of commission in the charge as given, and of omission in failing to charge upon questions that sometimes arise in the trial of cases of this character. Of the latter class none seem to have sufficient merit to warrant their discussion, except one based upon the master's duty to instruct and warn his servants of dangers and defects not obvious or known to the servants. Upon this point the jury were instructed that "if the defendant furnished the elevator for the plaintiff to use, it was its duty to instruct him how to use it and to warn him of such dangers as were not obvious or known to the plaintiff when he was using it." In the absence of any request to charge, the evidence and claims of the parties did not require any further instructions upon this point. *Page 650
There are several assignments of error based upon the finding of facts by the trial court, to the effect that certain facts were found without any evidence. The appellant also contends that the finding should be corrected by the addition of other facts established by the evidence. Upon the appellant's motion a transcript of the evidence is before us. An examination of the record discloses that the appellant's claim, that certain facts were found without any evidence to support them, is without merit.
Three separate claims are made by the plaintiff that the finding should be corrected by the inclusion of additional facts, upon the ground that they were established by the evidence and are necessary to properly present the facts, rulings and charge of the court. We fail to discover how any one of these claimed additions possesses importance as bearing upon any of the assigned errors other than the denial of the motion to set aside the verdict. That being so, their inclusion in the finding would not be helpful to the plaintiff. The transcript of the testimony is before us, and it is to that that we look in determining whether the court erred in refusing to set aside the verdict. For the purposes of the appeal from the denial of a motion to set aside the verdict, a finding is unnecessary. The transcript of testimony needs no supplementing in that way. Summa v. Dereskiawicz, 82 Conn. 547,74 A. 906; Farrington v. Cheponis, 84 Conn. 1, 78 A. 652. The additions to the finding as desired are unnecessary, and the rights of the plaintiff are fully protected without them.
Our examination of the evidence satisfies us that the trial court did not err in denying the motion to set aside the verdict. There was evidence from which the jury could reasonably have found that the plaintiff was not in the exercise of ordinary care when he was injured, *Page 651 and that this want of care contributed to his injury. There was evidence that the elevator in question was for the use of freight only, and that a notice was posted upon it forbidding its use except for carrying freight. There was further testimony from which the jury could reasonably have inferred that the plaintiff had been personally forbidden to ride upon the elevator. His own testimony as to the manner in which he was injured was as follows: "Everybody had gone out of the factory. I went out to get a paper. After I got the paper, I went up stairs, and I found the elevator running and I jumped on it, and after I jumped on it, my legs got caught on the elevator, and after my legs got caught on the elevator, I tried to stop the elevator, and I did not have the time, because I was about even with the floor." This, with other evidence for the defendant, furnished sufficient warrant for the verdict rendered, and the motion to set it aside was properly overruled.
There is no error.
In this opinion the other judges concurred.