Christy v. Schwartzchild & Sulzberger Co. ( 1908 )

SANBORN, District Judge

(after stating the facts as above). The work being done at the time of the accident was repairing. The elevator was not in use, except to experiment with the repairs. Plaintiff was called by the millwright to learn if the cables were properly placed on the drum. Having completed this, his duty cease'd, and his staying to assist further was repair work, and made him a fellow servant with the millwright, assuming the risks of that service. Reed v. Moore & McFerrin, 153 Fed. 358, 82 C. C. A. 434. If the elevator operator had been incompetent for want of instructions or other cause known to the employer, and his negligence had caused the injury, plaintiff would not have assumed that risk; but he was instructed, and, so far as appears, competent to run an elevator when in repair, and his failure to prevent the unwinding of the cables was the remote cause, the proximate cause being the defective clutch in process of repair.

The condition in which the record comes to us makes it also necessary to hold the plaintiff chargeable with contributory negligence. Plaintiff was permitted to “indicate” and “illustrate” his testimony by signs and gestures which are not explained, but which were entirely intelligible to the trial court. It thus happens that important, perhaps vital, evidence is not before us. If this evidence were here, it might be clear from the way plaintiff was caught in the cables that he carelessly placed himself in a dangerous position. To authorize reversal error must clearly appear. The trial court, with all the evidence before it, directed a verdict for defendant. Some of the evidence being omitted we cannot say this was error. Consolidated Stone Co. v. Summit, 152 Ind. 297, 53 N. E. 235. Although the bill of exceptions is certified to contain all the evidence offered, heard or taken at the trial, yet the omission of matters apparent on its face, which might have been controlling of the decision below, must lead to affirmance of the judgment.

The judgment is affirmed.