McIntyre v. Hamilton

Opinion by

Head, J.,

The able counsel for appellant urges here, as he did in the court below, the two propositions that there was no evidence of any negligent act by the defendants to warrant a submission of the case to the jury and that the trial court should have declared, as matter of law, that the plaintiff had been guilty of contributory negligence. The opinion filed by the trial judge (Reed, P. J., fifty-fourth district, specially presiding) discharging the rule for judgment non obstante veredicto appears to us to satisfactorily answer both of these contentions. That the plaintiff was seriously burned about his feet and legs whilst working in the stream below defendants’ mills, there is ample testimony, if credible, to prove. That these burns exhibited at least some of the characteristics peculiar to burns caused by acid rather than fire, there was expert testimony to establish. It is true rubber boots were provided for the plaintiff if he chose to wear them. The injury occurred in August. The water was quite shallow. The plaintiff testified his understanding was the boots were provided merely to keep his feet dry. He had no information of any danger, beyond wet feet, threatening him if he failed to use the boots. The opinion of the court points out the testimony on both branches of the plaintiff’s case. We agree that under the evidence referred to the court below could not have with propriety done otherwise than submit to the jury the questions of the negligence of the defendant and the contributory negligence of the plaintiff. As a consequence there could have been no binding direction, and the first, second, fifth and sixth assignments must be overruled.

The third assignment complains of the action of the trial court in admitting, over the objection of the defendant, certain evidence as to the quality of the water in the stream. It is true this testimony refers to other occasions than the one on which the plaintiff was injured. Does it necessarily follow that the evidence was irrelevant? The line of the defense was that no liquid of any kind of a harmful character was discharged from the mill into the stream. Their contention was that the only liquid used in the mill operations of such character was what is called “black liquor,” and that this was so extremely valuable that practically every drop of it was carefully reclaimed within the mill and no portion of it allowed to escape under any circumstances. If this were true, it would of course most strongly discredit the plaintiff’s testimony that the burns of which he complained were caused by the action of the water in which he was standing while at work. On the other hand, if it could be shown that the theory of the defense in the respect indicated was not founded on fact, and that the refuse liquids discharged into the stream from time to time were of a character to do mischief, the strength of the defense would be greatly impaired and the position of the plaintiff correspondingly strengthened. The learned trial judge therefore received the testimony offered “for the purpose of showing whether the character of the water is injurious to inanimate matter.” The evidence in kind was unobjectionable. That is to say, it possessed intrinsic probative value, and we are not prepared to say that the fact which it tended to establish was so remote from the issue, as the parties had made it up, that its admission by the trial judge should be declared reversible error. The third and fourth assignments are dismissed.

Judgment affirmed.