Puget Sound Iron Co. v. Lawrence , 1887 Wash. Terr. LEXIS 54 ( 1887 )

Mr. Justice Allyn

delivered the opinion of the court.

The plaintiff in the court below was an employee of appellant, the Puget Sound Iron Company. In the course of his employment he was assisting in the removal of an engine bed-plate up an incline; for this purpose a 4£ inch manilla rope was used, with blocks, pulleys, etc. The rope broke from some hidden defect when the bed-plate was about two thirds of the way up the incline, and the bed-plate, thus relieved, descended, injuring one of plaintiff’s arms. There was evidence tending to show this rope to have been sufficiently and properly tested; and on the other hand, evidence tending to show that this had not been thoroughly or sufficiently done, and that the defect should have been seen through discoloration, etc. The jury found for the plaintiff. It is claimed that the court erred in several. instructions excepted to at the time, but we think it sufficient to consider only the sixth instruction; and in fact, no considerable stress seems placed on the others.

The sixth instruction, given at request of plaintiff’s counsel, and excepted to by defendant, is as follows: “ The fact that the rope was broken in the performance of the work in question is of itself prima facie evidence that the defendant did not use reasonable care or diligence in the selection and use of the rope, blocks, and apparatus in question; and to overcome such prima facie evidence of negligence, the burden of proof is upon the defendant corporation; and unless the defendant establish by a clear preponderance of the evidence that before said rope, blocks, and apparatus were used for the work in question, the defendant, through its agents, used ■every available and ordinary means to ascertain any defects there might be in the rope, blocks, and apparatus, then you must find that the defendant was guilty of negligence, and if the plaintiff was injured by such negligence, and was not in fault, you must find a verdict for the plaintiff.” The rule thus announced as to care and diligence in such a case we find no fault with; but to go further, as herein, and say in effect, “ the burden ■of proof is then upon the defendant to establish by a •clear preponderance,” is certainly not correct, and a very dangerous use of terms. The presumption first stated made it incumbent upon the defendant to satisfactorily explain, as the jury should have been told, but they might naturally infer, and doubtless did, that the “burden of proof” was shifted. More than this: the defendant, it is said, must do this by a clear preponderance, etc. It was held in a late case, “ an instruction, ‘unless the preponderance of evidence clearly shows/ etc., was erroneous, the word ‘ clearly ’ being calculated to lead the jury to believe that something more than a mere preponderance was necessary.” (Prather v. Wilkins, 4 S. W. Rep. 252 (Tex.).) The remaining portion of the instruction is perhaps equally objectionable in requiring the defendant to use “every available means,” etc., it ■clearly implying an examination and test of much more than the usual and ordinary character.

For these reasons, we think the instruction would almost certainly mislead the jury, and the judgment is therefore reversed, a new trial granted, and the cause remanded for further proceedings.

Turner, J., and Langford, J., concurred.