Bain v. Athens Foundry & Machine Works

Blandford, Justice.

A verdict having gone in favor of defendant, the plaintiff moved the court for a new trial, which was refused.

The court charged the jury that, if the defendant was negligent, such negligence should amount to criminal negligence before the plaintiff could recover; but the charge fell far short of giving the whole law in charge to the jury. He should have stated that, if the evidence showed that the blast followed the direction of the hole drilled, and if the hole was so drilled as to direct the blast against a house near by, in which there were a number of individuals, among whom was the deceased, they should take this into consideration in determining whether the defendant was guilty of criminal negligence. The charge, as given on this point, was calculated to mislead the jury and to withdraw their minds from the main issue involved in this point.

Again, it is insisted that the whole of the charge as to deceased’s being a fellow-servant with Childers, the blaster, is erroneous, because the same is mere abstract 1 aw. This assignment of error is well founded, under the evidence in the case, which is uncontradicted. Childers alone had charge of the work of blasting; with this work Bain had nothing to do; he was in no sense a fellow-servant with Childers. See Wood’s Master and Servant, 840, 841. So we think that this part of the charge was mere abstract law, and should not have been given by the court.

Complaint is also made of the charge of the court as to contributory negligence on the part of the deceased. While the law on the subject was correctly stated by the court, there is no evidence in this record to show that Bain contributed in the slightest degree to the injury. He was at his place of business, the place where he should have been; he apprehended no danger to himself, but he was killed by the recklessness of the blaster in directing the blast against the place where he was.

The verdict in this case is not only contrary to the evidence, but without evidence to support it. If the testimony in the case is entitled to credit, there should have been a verdict for the plaintiff.

Judgment reversed.