FULLER
v.
CITIZENS'
NA.-T;
BANK.
815
over that and make further investigation into .these matters, I have briefly attempted to call your attention to. the. testimony and the salient points in·the case. With that, gentlemen ·of the jury, you may take the case and decide it. It is a case of no little importance. I trust that you will feel the responsibility that is thrown upon you in reaching just and proper conclusions, from all the evidence in this case, fairly and without violence to the evidence, and without violence to your consciences, and render a verdict that you think the evidence fairly justifies in this case. . You are the exclusive judges of the credibility of the witnesses.. You have the right to consider all the circumstances in the case. If circumstantial evidence preponderates, or overthrows or overcomes, in your opinion and in your judgment, the direct positive testimony of the witnesses, you ha·ve the right to take that kind of evidence and give it all the weight it is entitled to.
FULLER V. CITIZENS' NAT. BANK OF GA!lION,
O.
(Oi.rcuit Oourt, No D. Ohio, E. D. Ootober Term, 1882.)
1.
PRINCIPAL AND
Where an owner of property lets the whole 'work of' excavating and ftniabinga vault in front of his property to a party, as a contractor, to·finish and :completlj the whole as a job, withQl/.t reserVing any control ·or direction him in its construction, or over the construction of the. work or the place 'where it was being constructed, or the mode of its execution or the workmen be employed to do it, although such contractor is to be paid a reasonablecompensation .for the work when completed, or is to be paid by the day, and no fixed price is agreed on, and although the owner furnishes the material, he will not be liable for the negligence of such contractor in not providing fl)litabJe guards against danger to persona passing on tlie Sidewalk. Hut if such owner reserves the control of the place of the excavation; or the control of the contract, or the right to direct hi.min the constructIon of tIle work, or does control him or direct him in the doingof the work, such contractor is the mere servant of such owner, and the Owner will be liable for his negligence and carelessness.
to
2. NEGLIGENCE-REASONABLE AND PROPER CAllE.
Negligence is a failure. to do what a reasonably-prudent person would ordi. narily hav:e dQne under the of the situation, or doing what lijIch person under existing circumstances would not have dQne. Reasonable and proper care must have reference to surrounding circumstances. These may often demand ahigheF Or lower degree of care and diligence of a party. B. SAME-MAT'lIE.R 011' LAW Alii>; FAC'l'-PnOVINCE OF COURT ,AND JURY.
Negligence is a question of law and fact. The duty:of tJ,le p'l,lortyis of Jaw, and to be settled by the court. What was. done by the party is matter of 'fa-ct, and to be determined by jury. . " .'. "
FEDERAL 4. SAME-PREPONDERANCE OF EVIDENCE.
In an action for damagell for an injury caused by negligence, it is incumbent upon the plaintiff to establish, by a fair preponderance of evidence, that the party charged with negligence, or his a.gent or servant, was guilty of the negligence complained of, to entitle him to recover. 5. ,SANIE-)!EASURE OF DAMAGES.
,
Where jury find defendant guilty of negligence resulting in injury to plaintiff they should assess him such damages as they think will reasonably compensate him for the injury reoeived, and may take in account in such assessment of , damages his loss of time, bodily and mental suffering, expense of nursing and doctors' bills, diminished capacity to attend to husiness or work in the future, and permanent disabIlity, occasioned by the mjury. if such is shown by the evidente.
a
At Law. Adams J; Russell, for plaintiff., G. H. Scribner and Judge G. E.Pennewell, for defendant. J., (chargingju1·y;).mhedefeIida,nt, at the time of the injury complained of by the plaintiff in this case, was the owner and occupier of a building used for banking business on the east side of South Market street, in the town of Galion. It had caused the digging of an excavation in th.e sidewalk in front of the building, to be used as It coal vault for the use of the building. On the morning of the aixth of November, 1880, at about 4 o'clock, the plaintiff went from his hotel to the depot of the N. Y., P. & O. Railroad, to take the train passing along on Market street, on .the opposide side from the building. Missing the train, he returned towards the hotel, and passed along the sidewalk in front of the bank building, and in doiIlg 80 fell into the excavation, and was injured by having' his arm broken, aQd for which he sues the defendant.' He alleges that the defendant in the construction of the vault, the same being open, did not place around the excavation a safe and proper fence to protect 'the public using the sidewalk, particularly the plaintiff, from danger in falling into the 'same,' :and; was guilty in that respect of negligence, and thereby, without the ifa:ult of the plaintiff, caused the injury ofwl1ich he c'omplains. The' ,defendant 4enies the charged, as well as the inj\lry. By way of a special defense, the defendant alleges that it made a contl'a{lt with one David Tamlyn,a contractor and builder, to mu;ke a vault of ,certain dimensiqns ,l?l.dewalk in' X),"ontof its building, and cqmplete the same,and to be paid for by, it in such amount as it might bereaB()uably worth.' . It alleges that it haJ no oontrol over the 'diggillig of' the vault or its completion; except to furnish the greater 'partoI the' mMeria.ls, and that, tl..terefqre, it il? not liable for the neg-
FULLER V. OITIZENS' NAT. BANK.
8.77
ligence of the said contraotor in tneexeoution<ofthe work. This an" ewer is denied by the plaintiff, who alleges that the said Tamlyn was only the agent or servant of the defendant, and as such, ,it is liable for any negligence or want of care of Tamlyn that caused the injury to the plaintiff. This issue involves a question of fact as well as one of law. The first is for you to settle from the evidence, and the law is to be settled by the court. It is conceded that Mr. Tamlyn in fact made the excavation into which the plaintiff fell, and was engaged in b1,lilding it up for the defendant at the time. The defendant had the right to make, or causete be matie, the excavation in the sidewalk for use as a coal vault, connected with its banking house alongside of the: walk, if no ordinance of the town prevented it, and it-is not:olaimed that there was such an ordinance. It is important to determine in the first place the character; :of Tam. lyn, and the relation he bore to the, defendant Jin doing the work for it. You will then carefully examine the evidence, l:md.··from·thatdebernilne what was the oontract between defendant and Tamlyn; and thenap. ply the facts thus found to the law as given you by the oourt,and thus you will be enabled to determine .the issue. The· defendant being a corporation, acts by ,its :officers, and. whatever was done bJ Mr. Green, its cashier, l·epreaenliing· the bank, would be the act of the bank; and this authority to act for the bank may be given, by parol,. or by resolution oithe board iof directors. If .you find from.theproof that the defendant let the' 'whole'work of eXQavating and finishing the vault to Tamlyn, asa aontradtor, to finish 'and complete tlieiwhore ,as a job, without reserving any control or direction ove1" J:ilin,in; its construction, or over the construotion of the work, or the place'Jwhere :it was beingconstrncted, or the·modeof its execution, orthe;w.6rkmen to be employed to do it; then he 'wonld; be an tractor, Rnd the defendant is·noHiable for his' negligence iIi not pro viding suitable gnards against to persons passing onth'eside:walk. The mere fact that Ta.mlynwas to b'e'paid 'pensationrfor the work when completed, or to pay by the: day, and no fixed price agreed on, do not of themselves change hisrelation;to ,the defendant; nor does the fact that .thedefendant. W8IS itl)J furnish material with'which the vault was be· constructed changelthe relation. .·But if you find that the defendant reserVll'd the:control ofthe,plaoobf the excava.tion, or the control of ,Tamlyn; or the right to'QireatlJ:lim in the construction 'of. the work,or,' did :controlhim or: dirfjcJj; hhrl! in :the doing of tbe the mere agent or servant, aUbe de-
&78
" ..
: FEDERAL BiEPORTEB,
lendant, and it would' be liable,fodri's negligence and carelessness, the Bame as if the defendant did ititselt The mere fact that the defendant remained in the possession of, the banking house does notestab· lish the fact of the control of the place of the excavation on the side" walk. If the contract was for the completion of the vault as an entiil'ety, neither party would have a right to terminate the contract before completion. . In determining the ,relation of the defendant to Tamlyn, it will be your diIty to carefully consider the whole evidence in the case as well as actions of the defen.dant· and Tamlyn, during the time of the construction of the work. If you find this issue in favor of the defendant; it will be your duty to return a verdict in its favor, and you .the issue made as to the carelessness need not. examine ,or alleged against the defendant. But if you find for the plaintiff on thisiss1Ile, it will be your d;uty to consider the-evidence bearing upon the. ,negligence alleged to have, caused the injury; :and the negligence of Tamlyn; :usuohagent,:and serva.nt of the defendant, would be the of the' defendanLitself. The neglige-nce complained of is inclosures were,not placed by defendR.nt around theexcatatiom to .prevent danger·. Negligence is a failure to do what a reasonably-prudent person would ordinarily have done under the circumstances of the situation; ,or doing what such person under existing circumstances ,would not have done. Carelessness and negligene:eare:relative termeh--what might,he negligence under some circurristancCilsor time or place may not be so: under other ciroumstances, &it another titn,e or ReasonRible and,propercare.muat have ref-· erenoe ,to 8urroundingciiroumstanoes. These may often demand. a higberor lower degree of,care and diligence of a party. Negli:geDce is a question of law and fact. The matter of law involveathe duty of the partYl and that of fact what was done by theparty. The court settles theformsr l and it is your duty to determine the: latter. The plaintiff had the, .right to the USe of the sidewalk,. in going from the depot, to the hotel, unobstructed and free from danger, but in using it he must exercise reasonable and-ordinary care to, avoid dangerous obst,ructions if any. auch be found thereon. The defendant, ;having, the .right to.make the vault aa, before stated, it was its duty, wbile the excavation ahd completing the vault underthe ,sidewalk, to exercise ordinary care to avoid d1tnger to those who ;might desire to pass over the sidawa.1kor along the street around it,. .by placing around. the· excavation. suitable and proper guardil or inclosureB to reasonably assure safety to personspas,l;ling along it, and d
879' to warn such persons of such excavation and the danger therefrom. The defendant was B'Ot bound to' illsuteUabsolute safety to persons using the sidewalk., If it appear in ,the eyideI).ce that the plaintiff himself, by his own cai'elessness and 'neglect, contributed to the injury, there can be no recovery in his behalf. ,Under this issue, then, it is your duty to carefully consider the "evidence and 'ascertain what was done by the defendant or Tamlyn in guarding the excavation' to prevent danger to persons passing it, and to that respect the defendant was guilty of negligence aa' before defined by the court. ' ' 'If proper guards or inclosures were placed around the e:l.cava'tion on the evening of the fifth of Nove.tn;ber, when work thereon and during the night, and before the plaintiff came along and fell int,o the excayation, such g\lards or 'inclosures' had' bee!l,,reinoved'; or were'broken down the knowledge of the its,agent, \ itis not responsible for any injury resulting from such· removal. It is in.cuthbent upon the' plp.intiff to establishbya fairprepOI1derance of evidence thll.t the defen4ant. or its agei:tt' or' of the negligenee, llom,plained' of, to,. entitle: him to recover. " 'The weight of the evidence and· the reliability of the witnesses al'emattersf6ryou to of whi<ili you are.'thejudges;· If yimftnd ," this issue in 'f/tvor of the that it'. qfiiegligence, then your verdict should be in ita favor. ,If you find thadefendant guilty of the negligence charged, then it will be ·yourdutfto· find for the plliintiff, ,and assess hiIn such daIllagesasyou will res,tsonably compensate for .the. injury rec('lived. The amount is entirely within your control. There are, however, several elements to be taken into account in such assessment of damages: ' such, as loss of time ,by the iJijury,'bodjly mental suffering"expellBe of nursing and doctors' bills, .diminished capacity tOrattend to business in the future, and permanentdisal:iility occasibnedby the injury, if such is shown from the evidence. :'l
The jury returned a verd,ictfor plaintiff $3,5()O·. T4e,,argument on the motion fora new trial wasl100rd by Judges BAiXTER and WELKER,-the former by request of the trial judge,c.:..::ahd>after 7 the charge was the the motioll, for a new 'trial over.t:uled byJ:udge WELKEI'., and'juiigment .entered upon the verdict.
880 BUNNEY V. HOLT,
Ex'r, etc.
(Cl'l'cuit Gourt, No D. Ohio, E. D. February Term, 1883.) 1. NE:GLIGENCE-l)EFINITION.
Neglig-ence is, the failure to do what 8. reasonably-prudent person would or. dinarily have done under the circumstances of the situation, or doing what a person under the existing circumstances would not have done.
2.
BAkE-HECOVERy-CONTRmUTORY NEGLIGENCE.
Where a plaintiff so far contributes to an injury complained of by his own negligence, or want of ordinary care and cantion, that but for that,neglig(Jnce, or want of care and caution on his part the injurJ' would not have happe'ned,' he is not entitled to recover. 3.'8AME-'-OWNER OF VESSEL-DEGREE OF CARE.
rrhe owner of a veS8el is required to exercise the usual and customary mode care adopt(Jd by reasonably-prudent persons in control of vessels of character, for safety to their employes from hatchways, usual,ly adopted and used on board of vessels of the eharacter of his, and'under lUte circumstances, dnd if that was not'done by the owner and his agents, such failure would 'be negligence, 'and if an, employe w,as injured thereby his own carelessness contributing thereto, the owner would be liable to damages theI'efor. 4. BA:M:E:-NEGLEC'r OF PORTER TO' VESSEL-Co·LABORER· . Where it is the duty of a porter on aves'sel to place lightsup6navessel and about the hatchways,if left open, and by reason of his failure to place such lights an employe fa Ill! down a hatchway and is injured, although such porter 'may have been a c,o-laborer in performing his duty in regard to the lighting of the vessel, he is the agent of the owner of the vessel, and his negligence would be.thenegligence of such. owner. 6. AND BERVANT.;...HrsKS OF EMPLOYMENT. , A, f>arty accepting the employment of a deck hand holds out to the employer that he is competent to discharge the duties of such employment, and incurs all the necessary and reasonable liabilities to accidents incident thereto, and if at the time of the hiring nothing is said a8 to his inexperience, the employer has a right to presume that he is familiar with all the duties of a deck hand: but if he informs the employer that he has no such experience, and no 'knowledge of the localities of the hatchways or of the gangways of the vessel, a greater degree of care would be required on the part of the employer to protect him from dangers that might be incidental to the employment under those circumstances. 6. NEGLIGENCE-WHAT JURY TO CONSIDER. Where an injury is alleged to have been caused by falling through a hatchway on a vessel, left open at night and not properly light.ed, the jury should consider what,is the usual custom, manner, and mode of lighting up such vessels, then determine whether the hlltchway was negligently left opel). or was properly lighted by the parties in charge of the vessel, and whether, under all the ciroumstances of the case. the party injured was, not himself !!:uiltv of negligence.
7,
SAME-MEASURE OF DAMAGES.
In such a case, where the jury find in favor of the plaintiff, they should assess him such damages as under the circumstances would be a reasonable compensa.tion for the injury received, taking into consideration the physical pain