Kirk v. Scally

Mr. Justice Sears

delivered the opinion of the court.

It is contended by counsel for appellants that the verdict is not supported by the evidence, because, it is argued, it appears that appellee fell and was injured by reason of a sudden attack of dizziness, and through no fault of appellants. It is also argued in this behalf, that there was no negligence of appellants, that the opening was left uncovered by the coppersmiths who did the work upon appellants’ building, and that appellants were in no wise answerable for their negligence. It is further contended that appellee was guilty of contributory negligence. It is also complained that there was error in the exclusion of evidence. And finally it is urged that the verdict is excessive.

From the undisputed evidence it is apparent that appellee, who had gone to the floor in question under order of appellants’ foreman, was injured by falling through an unguarded opening in the floors, of which he had no knowledge whatever, and of which condition of the floor the foreman had direct and definite knowledge. As to whether the foreman warned appellee of any danger the evidence is conflicting; but there is no evidence to show that he was warned of the particular peril in question. The jury were warranted in finding that he had no warning. One of the appellants testified that after the injury appellee stated to him that he had fallen from the ladder as the result of a sudden attack of dizziness. In this, however, he was positively contradicted by the appellee, who testified that he had made no such statement, and, in effect that he had not fallen from the ladder, but was upon the floor and engaged in moving the ladder from one point to another in his work when he fell. Evidence was given as to the finding of the ladder and lantern after appellee had fallen. The question thus presented was one of credibility, and peculiarly within the province of the jury, and we are not prepared to say that their finding was against the weight of the evidence.

It can not be maintained that any negligence of the coppersmiths in leaving the opening uncovered and unguarded can operate to relieve appellants from liability. Appellants, not the coppersmiths, were in possession and control of the floor in question. The gist of the negligence of appellants was in sending appellee, who was unfamiliar with the place, to work about this opening, which was left unguarded, of which condition appellants are chargeable with knowledge.

The foreman testified: “At ten o’clock of the day of the accident, and two or three times after, I was on the sixth floor and saw the hole was open. The coppersmiths were then working on the fifth floor.”

There is no evidence which, in our opinion, would warrant a jury in finding that appellee was guilty of contributory negligence. In obedience to the order of his foreman he went to a place where he had never before been, and so far as the evidence discloses, he exercised ordinary caution in his work there. If the language used by the foreman in his testimony be interpreted most favorably to appellants, and if his testimony be credited against the testimony of appellee, yet it would not necessarily establish any contributory negligence in the subsequent conduct of appellee.

Appellants offered evidence to show that they had some time before, not on the day of the injur, ordered the coppersmiths to close the holes in the floor. This evidence was properly excluded by the trial court. Its effect, if admitted, could not excuse appellants from the result of their action, through their foreman, when it was known that the coppersmiths had not obeyed this direction.

It is also complained that appellants were not permitted to show that it was a custom in their business to care for persons injured while in their service, without regard to the question of fault in causing the injury.

We think that this evidence was properly excluded. Whether appellants did, or did not, continue salaries of all injured emplojms, could have no bearing upon the issue here.

The only question remaining is as to the extent of the injuries and the amount of the verdict. It is conceded that there was a fracture of- the collar bone and of the bone which protrudes above the hip, called by one of the experts the upper of the bones forming the hip joint. It is claimed by appellee that he also received injuries which have resulted in a disease of the bladder, designated by the medical witnesses as a catarrhal inflammation of the bladder. One of these witnesses testified that this condition would probably be permanent.

JBut it appears that after the injury appellee, in an effort to obtain employment, made certain statements to the effect-that he was physically sound. It became, then, a question for the jury as to how far this contradictor statement should be considered as affecting the credibility of appellee as a witness. The jury apparently gave greater weight to his statement under oath at the trial, and corroborated to some extent by the medical experts, than to a statement not under oath and made in an effort to secure employment. This was a matter peculiarly within the province of the jury, and we are not disposed to interfere with their finding. If the testimony of appellee and the experts be credited the verdict is not excessive.

Ho other complaint is made as to the procedure of the trial court. The judgment is affirmed.