Gibson v. Sterling Furniture Co.

Van Fleet, J.

The plaintiff, a lad of eleven years, while in the employment of the defendant in its furniture factory, was set to the task of cleaning the rollers of a sand-papering machine, and, while thus engaged, the machine being at the time in motion, one of his hands was caught by the sand-paper drum, which was revolving at a high rate of speed, and badly lacerated, torn, and otherwise injured to such an extent as to leave plaintiff permanently maimed.' He brought this action to recover for the injury, alleging, in substance, negligence of defendant in putting him at a dangerous task, without knowledge or experience on his part of the dangers incident thereto, and without warning thereof by defendant, or instruction as to how to avoid such dangers.

He recovered a verdict, and defendant appeals from the judgment entered thereon, and from an order denying a new trial.

It is very strenuously urged by defendant that the evidence is insufficient to sustain the verdict. But the record does not support such claim. No motion was made for a nonsuit, nor is it now pretended that there was not evidence on behalf of plaintiff tending, in legal effect, to make out a case, but it is contended that “ the testimony of defendant’s ten witnesses overwhelms in toto that of plaintiff”; and that the preponderance of defendant’s evidence over that of plaintiff made the latter “legally incredible.”

Without reciting the evidence in detail, which would subserve no useful purpose, it is only necessary to say that there is nothing in the essential nature of the evidence as it appears in the record, with the manner and bearing of the witnesses lacking, to disclose any necessary preponderance in favor of defendant; nor is there anything inherently or otherwise so improbable in the character of the evidence on behalf of plaintiff as to render it legally incredible, or which tends to deny it the effect which we think it clearly has of creating a substantial conflict. It is true that defendant’s witnesses greatly exceeded in number those of plaintiff, and there was a very sharp and decided conflict between the two as to the facts; but, however great the disparity, mere preponderance in number of witnesses of itself cannot, of course, control the finding of the jury. Much less can it affect our consideration in determining if the verdict finds support in the evidence. Notwithstanding the disparity in this instance, not only did the jury choose to give credence to the plaintiff’s evidence, but the action of the judge in denying a new trial must, for the purposes of this review, be implicitly regarded as indicating a like view by the latter, since, had his judgment been otherwise, it would have been his duty to grant a new trial. In such a case, under well-settled principles, we would not be justified in saying, even if we regarded the evidence as strongly preponderating in defendant’s favor, that the verdict is not supported by the evidence.

It is claimed that there was error in the refusal of the trial judge to give certain instructions requested by defendant, designed to submit to the jury the rule that a master is not liable when the injury is suffered through the negligence of a fellow-servant. But there was no such issue or question in the case under the pleadings, nor, as we regard it, any evidence to which such principle was pertinent. The theory of plaintiff’s case, as we have indicated, was that the injury resulted from the defendant’s putting plaintiff at work about a dangerous machine, with which he was not familiar, while the same was in motion, and the failure of defendant to properly warn and instruct him as to the dangers involved in the task he was required to perform; while that of the defendant was that neither it nor any of its employees, other than plaintiff himself, was in any way negligent or responsible for the injury, but that when plaintiff was set at work cleaning the machine it had been wholly stopped, and was not in motion, and that there was no danger whatsoever attendant upon plaintiff's work while the machine remained in that condition, and that the accident and injury occurred solely “from a freak of willful, unforeseen, and reckless disobedience on plaintiff’s part in putting on the motion gearing and removing the safeguard to said machine.” The fact that plaintiff was directed by defendant to perform the task in question was not denied, the only material issue being whether or not he was set at work while the machine was in motion, and so dangerous, without knowledge on his part of such dangers, or proper warning by defendant to enable him to avoid them. This issue in no way involved the principle sought to have submitted to the jury. If there was negligence in the particular involved in that issue, it was the negligence of the master, and for which he is responsible, notwithstanding the immediate instrumentality through which such negligence occurred was the act of a fellow-employee of the plaintiff. (Ingerman v. Moore, 90 Cal. 410; 25 Am. St. Rep. 38.) Under the pleadings, therefore, and evidence, the instructions in question were properly refused. (Conlin v. San Francisco etc. R. R. Co., 36 Cal. 404.)

The refusal of the other requested instructions involves no error. So far as they were pertinent to the evidence, and were correct expositions of the law, they were sufficiently covered by the instructions given.

We discover no error in the rulings of the court on questions of admissibility of evidence. Nor do we think the court abused its discretion in denying defendant’s motion for a new trial. There is no such showing of accident or surprise as should be required to invoke the favorable consideration of a court and induce it to set aside a verdict. As to the ground of newly discovered evidence, the showing wholly fails to disclose a requisite degree of diligence, assuming that the evidence can be regarded as of a character ljkely to produce a different result upon another trial, which to our minds is not obvious.

The judgment and order are affirmed.

Harrison, J., and Garoutte, J., concurred.

Hearing in Bank denied.