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Angerine & Cubbison, J. O. Ronesberger, and he proceeded to the work of making 2nd J. L. Lorie, for appellant. W. A. Snook, safe an unsafe place, a place which had beT. J. Madden, and Bird & Pope, for respond- come unsafe during the progress of the ent

work. There was nothing in the conditions

at the place to prevent plaintiff having a full ELLISON, J. The defendant, through a knowledge of all the probabilities and risks. Dumber of laborers and a foreman, was en- It was a plain matter of a high bank pressnaged in digging an excavation about 45 ing against the shoring until it became necleet square and 23 feet deep in which to lay essary to brace it to keep it from falling in. 1 foundation upon which to construct a As a carpenter of experience, he must have large smokestack. At a depth of near 25 known this as well, or perhaps better, than feet on three sides and 16 feet on the re- any other person. In such state of case the maining side, sloping thence from the bot- master is not liable for the injury which tom of the 16 feet to the main depth of 25 came upon him. Roberts v. Telephone Co., feet, it became necessary to more firmly se- 166 Mo. 378-383, 66 S. W. 155; Finalyson v. care the bank or wall by additional braces Utica Mining Co., 67 Fed, 507, 14 C. C. A. to the shoring which had been put in to pre- 492; Moon Anchor Mine v. Hopkins, 111 rept caring of the bank. Plaintiff was as- Fed. 298, 49 C. C. A. 347; King v. Morgan, signed to do the additional work, and while 109 Fed. 446, 48 C. C. A. 507. When the doing so, the bank broke or caved in and in- work in hand is dangerous for the reason fured him. He thereupon brought this ac

that it is to secure and make safe an untion for damages, and prevailed in the trial safe place, the rule, as generally applied. court.

that the master must furnish the servant a It appears from the evidence-chiefly that safe place in which to work, can have no given by plaintiff himself—that he was a application. To say that a man can have carpenter of some 14 years' experience, and a safe place to work in an unsafe place is an bad worked for defendant in general repair

absurdity. work of many kinds. He had done the The judgment, with the concurrence of work of a carpenter in putting in the shor- the other judges, is reversed. ing of the wall in question about a week before the injury for which he sues. On one afternoon defendant's foreman, believing the sboring needed to be made safer or more se

FOUTS V. SWIFT & CO. eure, sent for plaintiff, who was then en- (Kansas City Court of Appeals. Missouri. gaged at another part of defendant's pack

Feb. 6, 1905.) ing house grounds, to come over to the ex- 1. MASTER AND SERVANT - ASSUMPTION OF cavation. When he got there the foreman Risk. directed him to go into the excavation, and

In an action for injuries, evidence that the

plaintiff warned defendant's foreman of the proceed to put up braces so as to secure the

danger of an unprotected electric fan, and resboring and hold the bank. He proceeded ceived his assurance that he would attend to it with the work, and while engaged in nailing

as soon as he could, removes the question of assome of the timbers the wall broke in, and

sumption of risk. he was injured. He stated that the fore

[Ed. Note. -For cases in point, see vol. 34,

Cent. Dig. Master and Servant, 88 637, 640.] man did not tell him that the wall was dan

2. SAME-CONTRIBUTORY NEGLIGENCE. gerous, but that he knew the purpose of

In an action for injuries by an unprotected the braces was to make the shoring secure electric fan near where plaintiff worked, the and the wall safe, and that they were need- evidence considered, and held not to charge ed. We thus have this state of case: The

plaintiff with contributory negligence in coming

in contact with the fan. plaintiff, a man in full mental and physical rigor, with an experience of about 14 years Appeal from Oircuit Court, Buchanan as a carpenter, who had assisted originally

County; H. M. Ramey, Judge. in putting in the shoring to secure the wall Action by James R. Fouts against Swift Op bank, was called upon to put braces & Co. From a judgment for plaintiff, deagainst the shoring so as to make it safe.

fendant appeals. Affirmed. He knew that was the purpose, and he be- Mosman & Ryan, for appellant. Culver, lieved it needed the braces. In other words, Phillip & Spencer, for respondent. be knew that it was unsafe without the traces. He stated that the foreman did not

ELLISON, J. This is an action for pertell bim that it was unsafe. The foreman

sonal injury, which resulted in plaintiff's fadoubtless supposed a man of ordinary intelli

vor in the trial court. Bence would know that without being told.

We can dispose of a considerable part of The order itself, under the circumstances,

defendant's objections to the judgment by was the same as if the foreman had said

correcting an impression, which must have to him: “Here, Henson, that wall is in dan

prevailed when the brief was written, as to rer of breaking in. That shoring is not suf

the nature of the cause of action which ficient; it needs attention. Go down there plaintiff has set out. He has not complainand make it safe with braces.” And so plaintiff evidently understood the situation, *Rehearing denied June 26, 1905.

ed of defective machinery in the sense of being compelled to use such machinery. The machine which injured him was not one with which he worked, but it was one situated near by the place where he worked, and, as he contends, made that place unsafe. Under the latter view of petition clearly states a cause of action, and all objections on that head which have been urged by defendant are not well taken.

The defendant is a corporation engaged in killing and packing meats at the city of St. Joseph, and in such business it conducted a cooperage department, where it made barrels, and where plaintiff was engaged as a servant. There were fires where the barrels were heated, and when heated they were assed out and along to a number of employés who performed their assigned part of the work in the process of making them a finished barrel. Plaintiff's duty was to receive the barrels when heated, "level" them on a plane surface provided for that purpose, and then pass them on to the man assigned to perform the next duty upon them. The fires and the nature of the service in this process of manufacture made it quite warm, and so defendant provided an electric fan for the comfort of those there engaged. The fan consisted of a hub or centerpiece from which several steel paddles projected. These revolved noiselessly, and with exceeding great rapidity. The fan was suspended from the ceiling of the room, and came down partially through a platform near the end. The platform itself did not rest upon the floor, but was held suspended about five feet and four inches above the floor by four or more pieces of timber of about two by four inches dimension. These timbers partially inclosed the fan above the platform and for about four inches below. Yet a person could go under the platform between the ends of these timbers and thus come in contact with that portion of the ends of the paddles of the fan which revolved below the platform. The platform was between 2 and 242 feet square, and the fan was at the side or end furthest away from where plaintiff worked. A brick cross-wall seemed to have been so constructed that the end of it came against the platform near the center. At the time plaintiff was hurt there was a short lull in the work, and he had taken a broom and swept away some dirt or trash which would accumulate from time to time from the work. He placed the broom in the corner made by the brick wall and platform where they came together, and when he was in the act of turning around he found himself in such close contact with the pla m that he instinctively dodged his head down till it cleared the platform, and in making the swing of the turn, with his head bent forward or outward from a perpendicular line with his body, it came in contact with the fan, which, as before stated, extended some

inches under the platform, and received the serious injury of which he complains. As the barrels were heated they were started on towards plaintiff by rolling under the platform and fan, and it became necessary for him to reach under for them many times a day. Plaintiff ha spoken to the foreman in regard to danger from the fan, and had been told that it would be attended to when “they could get around to it." It had also been stated between them that the fan ought to be screened. Plaintiff said that he knew of the danger, but he thought he could get on safely by being careful.

In stating how plaintiff came in contact with the fan, we have not pretended to follow the language of any particular witness, but have described it according to the way the evidence shows it must necessarily have occurred. We are satisfied that a prima facie case was made for the plaintiff. There is no room for doubt that the plaintiff was hurt while engaged in the performance of his duty as an employé. The only questions in the case are whether the injury was risk of his employment, and whether he was guilty of contributory negligence.

It appears clear that it was negligence in the defendant to leave so dan cous a de vice (noiseless in operation) as an electric fan to be hung so low down from the ceiling that one could walk into or against it, and not have it in some way shut off from contact with those who might be at work near it. It was not machinery with which plaintiff was required to work, but it constituted a dangerous condition to the safety of the place. As much so as would be an open and unguarded well, or an unguarded opening in a floor. We said in Zellars v. Mo. Water & Light Co., 92 Mo. App. 124, in speaking of the master's duties to the servant, that: "He does not insure the safety of the place to work, but he does insure that he will not be negligent in his effort to have it safe. And, if he is negligent in that respect, he is liable absolutely to the servant, unless, of course, the servant was himself guilty of contributory negligence, or unless it be one of those instances (which it is not necessary in this case to define) where the servant assumes the . risk of injury." In this case, eren under that branch of authority wbich takes the most extreme view of assumption of risk exonerating the master (Glenmount Lumber Co. v. Roy, 126 Fed. 524, 61 C. C. A. 506), the warning which this plaintiff gave the foreman, and the latter's assurance that he would protect the fan so soon as he could get around to it, took the question of assuming the risk out of the case. Hough v. Ry. Co., 100 U. S. 213, 225, 25 L. Ed. 612.

Practically, then, there is but one question, and that is contributory negligence. It is the theory of defendant that, as plaintiff might easily have walked around the platform and avoided the fan, he need not have

that grounds for a new trial, stated as "error in the admission and exclusion of evidence,” and as "the court erred in refusing the special instructions asked," were insufficient, for failing to set out the evidence or the instructions.

Error to Circuit Court, Shelby County; J. P. Young, Judge.

Action by W. B. Johnson against the Memphis Street Railway Company. From a judgment in favor of plaintiff, defendant brings error. Affirmed.

Wright, Peters & Wright, for plaintiff in error. W. V. Sullivan and W. A. Percy, for defendant in error.

cred under it and ran into the fan. The theory of the plaintiff is that in the act of toring around he found himself about to go 15anst the platform, and that he stooped er ducked" his head under it and thereby ane in contact with the fan. There was evidence to support that view, and we will sot say, as a matter of law, that under such Credistances he should have caught himself as possibly he might have done) and Tuled around. Defendant says that he Ist Lare walked clear under the platform that is, from one side to the other as the fan was on the far side from him. But it nest be borne in mind that the platform Tis rery small affair, only between 24 and 30 inches wide, and that in "ducking" oder it, as expressed by witnesses, one Ezt strike his head against an object on the opposite side while his body was just under the edge of the other side. Counsel 2 tbe expression that plaintiff, to strike the fan, would have had to pass “clear under" or "clear over to the other side," as

ab it was quite a distance, and that one Tould have to deliberately walk over to the fun. The fact is, as before intimated, that than one side to the other of the small plat!?a Fas, perhaps, within the circle one's Eead would describe in turning round in a longed position.

The objections to evidence were numerous. at we have already written disposes of Day of them. The remaining we believe

well taken. We think that nothing was dzitted or excluded which in any manner arted the substantial merits of the case.

The instructions given for plaintiff were poner, and were in keeping with the law as h is laid down in this state. Curtis v. McSar, 173 Mo. 270, 73 S. W. 167; Wendler 1. People's Furnishing Co., 165 Mo. 527, 65

W. 737; Settle v. Ry. Co., 127 Mo. 336, 30 ¿ W. 125, 48 Am. St. Rep. 633; Pauck v. Fressed Beef Co., 159 Vo. 467, 61 S. W. 806.

A careful examination of the whole recand satishes us that no error was committed gaich materially affected the merits of the

and the judgment must therefore be med. All concur.

SHIELDS, J. This action is brought by W. B. Johnson against the Memphis Street Railway Company to recover damages for personal injuries sustained by him, through the negligence of the defendant, while plaintiff was a passenger on one of its cars.

The case was submitted to a jury, and a verdict found for the plaintiff. The motion of the defendant for a new trial was overruled, and judgment entered. The defendant tendered a bill of exceptions to this action of the court, which was signed and filed, and the case is now before us upon appeal in the nature of a writ of error.

The errors assigned are predicated upon the refusal of the trial judge to set aside the verdict of the jury and grant the defendant a new trial because of the admission of certain evidence offered by the plaintiff over the objection of the defendant, and his refusal to give in charge to the jury certain written instructions submitted by counsel for the railway company at the conclusion of the charge in chief.

For the defendant in error it is insisted that these assignments of error cannot be considered by this court because the errors complained of were not properly set out and relied upon as grounds for a new trial in the motion made by the plaintiff in error in the trial court for that purpose, as required by a rule of that court, and passed upon by the presiding judge.

The rule of the circuit court of Shelby county in relation to motions for new trials, which is in the record, requires all grounds upon which a new trial is asked to be stated and set out separately in a written motion and entered upon the minutes of the court; and all errors not so set out are presumed to be waived, and will not be considered on the hearing of the motion.

The plaintiff in error attempted to comply with this rule, and the grounds for a new trial upon which these assignments are based are stated in its motion in these words:

"(1) For error in the admission and exclusion of evidence.

"(2) The court erred in refusing the special instructions asked by the defendant.”

The jurisdiction of this court is exclusively appellate, and it can only pass upon matters which the record shows have been con


MEMPHIS ST. RY. CO. V. JOHNSON. Bapreme Court of Tennessee. June 20, 1905.)


A motion for a new trial must be made ? cerruled, to obtain a review of errors ocSting in the trial of the case, which a bill of *ptions is required to bring into the record. INTE TRIAL-STATEMENT OF GROUNDS.

Shannon's Code, 8 6075, provides that cira murts may make all such rules of practice u be deemed expedient; and a rule of a

court required all grounds for a new Ta' to be stated and set out separately in a The motion, and entered on the minutes of court, and provided that all errors not so s out should be presumed to be waived. Held,

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sidered and adjudged by the trial court from which the case has been appealed. The errors reviewed and corrected by it are of two classes: Those which appear upon the face of the record proper, as erroneous rulings in sustaining or overruling motions, and demurrers challenging the sufficiency of pleadings; and errors committed in allowing or overruling motions for

trials upon grounds brought into the record by bills of exceptions, as for improperly refusing a continuance, the admission of incompetent evidence, or the rejection of competent evidence, error in instructing the jury, or refusing further instructions seasonably requested in proper form, for want of evidence to sustain the verdict, or other similar ground. It does not act directly upon errors of the latter class, which are not a part of the record without a bill of exceptions, but upon the action of the trial judge for refusing a new trial because of such errors committed by him, or otherwise occurring in the progress of the case, as they may be waived or corrected before verdict. Therefore, before the jurisdiction of this court can be invoked and relief had on account of errors of the second class, they must be considered and acted upon by the trial judge in the disposition of a motion made by the losing party to set aside the verdict of the jury and allow him a new trial. Another reason why all errors which may affect the integrity of the verdict should be brought to the attention of the trial judge in a motion for a new trial is that he may have an opportunity to correct them, if necessary, by granting a new trial, and thus save the inconvenience, delay, and expense attending appellate proceedings.

The reason why this court will consider errors which appear upon the face of the record proper, without a motion for a new trial, is that they do not directly affect the corectness of the verdict, and would not be cured by setting it aside.

That a motion for a new trial, made and overruled, is necessary, in order to give the appellant the advantage of errors occurring in the trial of the case, which a bill of exceptions is required to bring into the record, is well settled. An eminent author on Practice says: "A motion for a new trial is an application made in a trial court for a retrial of the issue or issues of fact. It is a direct, and not a collateral, motion, and ordinarily its office is to specifically direct the attention of the court to errors committed during the trial, and to get the questions into the record and have them corrected by a new trial, or to thus correct a verdict or finding which is contrary to law or the evidence. It is necessary, as a general rule, in order to present upon appeal questions as to errors of law occurring at the trial which cannot be independently assigned in an appellate court, and generally to present any matter that does not appear in the record proper.” Elliott on General Practice, vol. 2, § 987.

And in another valuable work on Practice it is said: “The office of a motion for a new trial is twofold: First, to present the errors complained of to the trial court for review and correction, or to secure a new trial; second, to preserve the same errors in the record, so that the ruling of the trial court in 14 granting or refusing a new trial may be reviewed by the appellate court. It is a general rule that all errors correctable by motion for a new trial, and not so assigned, are deemed to have been waived by the applicants for a new trial. Unless a motion for a new trial has been presented and considered by the lower court, and its ruling pre- TO served, the errors assigned in the motion of will not be reviewed by the appellate court. ** To secure a review in the appellate court of errors committed at the trial, the complaining party must except to the errors and irregularities at the time when the rulings of the court thereon are made, and must call the attention of the trial court to such rulings by assigning them as errors and as grounds for a new trial; otherwise such errors will be deemed waived. It is a wellknown rule of appellate courts that errors of the trial court occurring during the trial will not be reviewed unless such errors have been called to the attention of the trial court, and opportunity given to correct them.

*** It is necessary, therefore, to present such error to the trial court by a motion for a new trial, and to secure a ruling on the motion." Ency. of Plead. & Prac. vol. 14, p. 846.

Whether a motion for a new trial specifically stating the grounds upon which it is asked is necessary in cases tried by the presiding judge without the intervention of a jury is reserved in Lancaster v. Fisher, 94 Tenn. 228, 28 S. W. 1094, but we would be inclined to hold that the better practice would require that it be done.

The motion must be reduced to writing and spread upon the minutes of the court, where the action of the court thereon must also appear. It is not sufficient that it, or the action of the court thereon, appears in the bill of exceptions. Railroad v. Egerton, 98 Tenn. 541, 41 S. W. 1035.

The circuit and law courts of this state have authority, by rules of practice applicable to such courts, to control the form and time in which motions for new trials shall be made and disposed of, which are reasonable and not inconsistent with the law. Code 1858, 8 4237 (Shannon's Ed. $ 6075); Mallon v. Manufacturing Co., 75 Tenn. 62; Alexander v. State, 82 Tenn. 91; Patterson V. Patterson, 89 Tenn. 154, 14 S. W. 485; Railway Company V. Hendricks, 88 Tenn. 719, 13 S. W. 696, 14 S. W. 488.

And this court, in the exercise of its pow. er to prescribe rules of practice, may provide that errors assigned upon the action of the trial judge in refusing new trials, in cases brought to it from the circuit or law courts, shall be predicated only upon such

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groceds for new trials as were set out in the court, and disregarded on appeal. All errors Diton made for that purpose in the trial known at the time of filing the motion must court, regardless of the rules of that court. be included therein, or the errors omitted Code 18-8, § 4504 (Shannon's Ed. 8 6337); will be deemed to have been waived." Ency. Deaton v. Woods, 86 Tenn. 37, 5 S. W. 489; of Plead. & Prac. vol. 14, 882, 883. Wood v. Frazier, 86 Tenn. 500, 8 S. W. 148; Mr. Elliott, in his work above cited (volBosv. White, 51 Tenn. 504; Foster v. Bu- ume 2, § 991), says: “The law presumes the rem, 48 Tenn. 781.

verdict to be correct. Hence on a motion for Rules similar to that under consideration a new trial the party must set forth the magpiring all grounds for new trials, wheth- grounds upon which he intends to rely, or e of law or fact, to be stated separately in the objections will be considered as waived. writing, and entered upon the minutes of the The motion should be in writing, and should court, and providing that all errors not so specify with reasonable certainty all the rulset out shall be considered as waived, are ings deemed erroneous. It is to be kept in 297 in force in a majority of the circuits of mind that it is the objectious specified in a this state, and are not only reasonable and motion, and those only, that are brought up Talid, but the experience of these courts, and for review, for all others properly arising of this in the cases coming from them, has on a niotion for a new trial are deemed to be d-monstrated that they contribute greatly to waived. It is on a motion-so it is written the speeds, final, and correct disposition of -that the appellate court acts, for, as to obitigation; and it would be better, for these jections not properly presented, the presumpreasons, and to prevent mistakes resulting tion is in favor of the regularity and legalfrom the existence of different rules of prac- ity of the rulings of the trial court. It is dce in the courts of the state, that they be the business of the party who takes excepad: pted in all of them.

tions to show that the decision is wrong. This court bas repeatedly held, in cases It is not sufficient that he succeeds in mystibrought to it from circuits having this rule, fying it by adopting language which subjects that all errors of the trial court not assigned the judge to the suspicion that he did not is grounds for new trial in the motion made understand the safest ground on which to for that purpose are thereby waived, and that place it. In order to show that rulings are freigments of error upon the refusal of the wrong it must appear that they were proba judge to grant new trials cannot be ably injurious to the party who makes comdedicated upon grounds not so assigned in plaint, since a mere harmless error will not the lower court. Railroad v. Blair, 104 Tenn. warrant a reversal.” 912, 55 3. W. 154; Wise & Co. v. Morgan, The text in both of these works, which are 101 Tenn. 273, 48 S. W. 971, 44 L. R. A. 548. of the highest authority, is supported by nu

We are now to determine whether or not merous decisions of other states, many of the grounds upon which these assignments which are predicated upon the general rules of error are predicated are sufficiently set of practice of courts of law. Ft in the motion for a new trial. It seems We are of the opinion that the grounds to be well settled that the statement of the set out in the motion should be as specific grounds in the motion must be sufficient to and certain as the nature of the error comdirect the attention of the court and oppos- plained of will permit. Thus, if the error ng counsel to the error or irregularity re- consists in the admission or rejection of evi. sed upon to vitiate the verdict.

dence, the evidence admitted or rejected In the work on Pleading & Practice last should be stated. If it be for affirmative Doted from, it is further said: “The general error in the charge, or for failure to give an rule is that the grounds (for a new trial] instruction properly and seasonably presentmust be stated so specifically as to direct the ed, it should set out the portion of the charge detention of the court and opposing counsel complained of, or the instruction refused, or 3 the precise error complained of. A mere otherwise definitely identify the instruction. statement of the grounds, without further If it be for misconduct of the opposite party Dedications, will therefore be insufficient. or that of the jury, the facts constituting it The purpose of the rule is to direct the at- should be stated. This was not done in this tention of the trial judge to the alleged er

The testimony admitted and that ex. Deous rulings, and present to the appellate cluded is not stated—not even the name of eart the precise question involved. The the witness given-and the instructions resafest course is to assign each error with the quested are not set out or sufficiently idensane particularity of an assignment of er- tified. per in appeal

... But this is not the We do not think that it is necessary to partice in most of the states; the courts state why the ruling complained of is erro riding that it is sufficient merely to assign neous as fully and with all the strictness for in the ruling complained of, as that the required in assignments of error in this maart erred in giving a certain construction court, but a fair statement of the error com* admitting certain evidence, without stating plained of, sufficient to direct the attention thy such ruling was

erroneous. If the of the court and the prevailing party to it, is grounds for a new trial are not stated in all that is required.

motion, it may be overruled by the Nor was it necessary for the successful


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