Florence v. Belt

WILLSON, O. J.

(after stating the facts as above).

Three of the 16 assignments are predicated upon instructions given to the jury, and 13 upon the action of the court in refusing to give instructions requested by appellant.

If the instructions given were erroneous in the particulars pointed out in the first and second assignments, obviously, we think, the errors were not of a nature requiring a reversal of the judgment. And so if they were erroneous in the respect complained of in the third assignment, for the error was one of omission merely.

On the theory that there was no testimony on which to base a finding that he had been guilty of negligence as charged by appellee, appellant asked the court to instruct the jury to find in his favor. It was not error to re-’ fuse the request. There was testimony warranting the finding made by the jury that appellant was guilty of negligence in permitting the knot to be in the rope, and testimony which would have authorized a finding that appellant also was guilty of negligence in failing to warn appellee of the danger he incurred in going into the pit to work as he did.

To accomplish the purpose for which the log was used it was necessary to place it near the edge of the pit; and to keep the log from falling into the pit because of the caving of sand as the work progressed it was necessary to move it back from time to time. On the theory that there was testimony which would have authorized a finding that the falling of the log into the pit was due to negligence on the part of fellow servants of appellee in failing to move it back, appellant requested the court to instruct the jury to find for him if they believed:

(1) That he had “committed the task of loading the sand into the car and looking after the rope and other appliances used in doing the work to his employes at the pit, and they had failed to use ordinary care to move the log back or securely fasten it;” or

(2) “That Lambert, who drove the horse, negligently permitted the log to get too near the edge of the pit, or the rope to get caught on the log or pull it into the pit;” or

(3) That Danner, who unloaded the sand from the conveyer, into the car, “saw the rope was going to drag the log into the pit, and could have stopped the car in its descent into the pit in time to have kept the rope from dragging the log into the pit, if it did, and that he negligently failed to stop the car and the rope jerked the log off into the pit;” or

(4) That the failure to move the log back was a proximate cause of the accident and that such failure “was the fault of the fellow servant.”

■ We think it was not error to refuse to so instruct the jury, and therefore overrule the assignments numbered 4, 5, 6, and 7. If it should be conceded that tlie testimony made an issue as to negligence vel non on the part of a fellow servant, it nevertheless would have been error to give the• instructions refused; 'for they would have authorized the jury to find against appellee if they believed one oí the men working- with him was guilty of negligence as specified, notwithstanding they also believed appellant was guilty of negligence in permitting the knot to be in the rope, and that his negligence in this respect was a proximate cause of' the injury to ap-pellee. It is settled — so well so that authority showing the fact need not be cited — that the employer is liable to his employs for injury resulting to him from his (the employer’s) negligence concurring with that of a fellow servant

Nor do we think the court erred when he refused to give to the jury appellant’s special charges numbered 3, 4, 7, 8, 13, 17, 18, and 23. The court we think in his main charge and in special charges given at appellant’s request sufficiently instructed the jury as to the matters covered by the refused charges.

The judgment is affirmed.

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