Osborn v. Woodford Bros. , 31 Kan. 290 ( 1884 )

The opinion of the court was delivered by

Valentine, J.:

This action was commenced by William F. Osborn against J. E. Woodford and A. L. Woodford, partners doing business under the firm-name and style of Woodford Brothers, and F. C. Jones and N. S. Werts, to recover damages alleged to have been sustained on account of the breaking of a plate-glass window in a building belonging to the plaintiff, which breaking the plaintiff alleged was caused by the negligence of the defendants in doing the work and in using defective machinery in moving a certain building owned by the Woodford Brothers. The plaintiff also’ claims that the work of itself was of such a dangerous character that the defendants were liable, regardless of the question of negligence. The plaintiff also alleged that Jones and Werts were the employés and special partners of Woodford Brothers in moving this building.

The Woodford Brothers answered, admitting the ownership of the building, and that they were partners, but denying that they were partners of Jones and Werts, or of either of them, either generally or specially, and denying all the allegations of the plaintiff’s petition, except such as they admitted. This answer, so far as it denied the allegations of partnership, was verified by affidavit. Jones and Werts also filed an answer, denying generally all the allegations of the plaintiff’s petition. A trial was had before the court and a jury, which trial resulted in a verdict and judgment in favor of the defendants and against the plaintiff; and the plaintiff, as plaintiff in error, brings the case to this court for review.

The first ruling of the court below assigned as error is the admission of certain evidence to prove that the Woodford Brothers let the contract to move their building to Jones and Werts, who thereafter had entire charge and control of the work of removal, and that they, the Woodford Brothers, had nothing to do with the work of removal, nor any control over the same. The plaintiff claims that such evidence was inadmissible under the defendants’ general denial; and this is the only ground upon which he claims that the evidence was not admissible. He claims that the defendants should have set forth this fact in their answer, if they wished to prove it. We think the evidence was admissible, and that the court below did not err in admitting it. It was merely evidence that tended to disprove or rebut the plaintiff’s ease, the plaintiff’s cause of action, the allegations of negligence, etc. But still, it was immaterial under the verdict of the jury, for the jury found that even Jones and Werts, the persons immediately connected with the injury, and who caused the same, were not liable.

The plaintiff also claims that the court below erred in admitting the testimony of A. C. Majors, as to the degree of care and skill subsequently exercised by Jones in moving another building. We think the court below erred in admitting this evidence, but we also think that the error was immaterial. Besides, the plaintiff did not save a proper exception. The evidence was probably introduced for the purpose of showing that Jones was a careful and skillful workman; but it certainly did not show him in any better light in that respect than the other evidence did. Indeed, it showed him in a much worse light. The objection and exception to the introduction of this evidence, as shown by the record, are as follows:

“ To all of the above testimony of the witness Majors, the plaintiff duly objected, and, the objection being overruled, duly excepted.”

It does not appear that any reason was given for the objection or the exception; and generally in such cases, a court does not err materially, unless a reason is given by the party asking for the exclusion of the evidence. The evidence may have been introduced to show that Jones was skillful and careful, or that the machinery was sufficient, or that moving buildings is not necessarily dangerous, or for still some other reason; but for whatever purpose it may have been introduced, we do not think it could have prejudiced the substantial rights of the plaintiff.

The plaintiff also claims that the court below erred in giving to the jury the instructions numbered 7, 8, 8J-, 9,11, 13, and 15. He claims that by these instructions “the jury were instructed in effect that to enable the plaintiff to recover they must find that the work done from which the damage resulted must be in itself dangerous, and likely to produce injury, however carefully done, or that there must be a want of ordinary care in its performance.” The portion of this instruction of which the plaintiff complains, we have put in italics. Two of the instructions given are in substance nearly as claimed by the plaintiff; perhaps, however, not quite so objectionable, but still possibly open to some slight criticism. We think, however, under the circumstance^ of this case, that the objectionable portions of the instructions were wholly immaterial; for there was nothing in the case that showed that the removal of the building required anything more than ordinary care in its removal. The two buildings were situated on opposite sides of the same street, and nearly opposite to each other. The width of the street is not shown, but presumably it was wide enough to permit the Woodford Brothers’ building to be removed without danger to Osborn’s building. But if it was not, the burden of proving that it was not, rested upon the plaintiff. The Woodford Brothers’ building was to be removed to some point not shown by the evidence. And here again the burden of proof as against the Woodford Brothers rested upon the plaintiff. There was no evidence tending to show that the mere removal of the building, if properly done, would have placed Osborn’s building in danger. The Woodford Brothers’ building was moved by Jones and Werts into the street, and nearly opposite Osborn’s building. One of the chains which Jones and Werts used in moving the building was old and much worn, and was not sufficient for the purpose for which it was used, and while they were using it a link was broken, and was thrown with great force through the plate-glass window of Osborn’s building, and by this means the injury was done of which the plaintiff, Osborn, now complains. If a proper chain had been used, evidently no injury or loss would have occurred. We think, by the exercise of ordinary care and diligence on the part of Jones and Werts, no injury would have occurred, and Osborn would not have sustained any loss; hence we think that the objectionable portion of the instructions complained of is wholly immaterial, under the circumstances of this case.

As before stated, the removal of the building was not of itself dangerous, nor likely to produce the injury complained of to Osborn’s building. In our opinion, however, the jury erred in not finding in favor of the plaintiff and against Jones and Werts; for we think they were guilty of negligence in not using a better chain. But that is a pure question of fact, which has been settled by the trial court and jury, and we cannot now reverse their decision upon it. And we are not asked to reverse such decision. We are not asked to reverse the judgment of the court below upon the facts, but are asked to reverse it only because of the foregoing alleged errors in admitting certain evidence and in giving the foregoing instructions. Therefore, while we think the verdict of the jury is erroneous, as between the plaintiff and Jones and Werts, yet we cannot rectify it. As between the plaintiff and the Woodford Brothers, we think the verdict of the jury is right. It is probable that if the Woodford Brothers had not been included in the action, or if such a persistent effort had not been made to obtain a verdict and judgment against them, the jury would have found a verdict against Jones and Werts. The jury probably became bewildered and confused by the persistent effort made to obtain a verdict against persons who were not liable.

Failing to perceive any material error of the trial court affecting prejudicially the substantial rights of the plaintiff, the judgment of the court below will affirmed.

All the Justices concurring.