Opinion
No. 3724.
Decided July 6, 1948.
An instruction though correct upon an issue, not supported by the evidence and upon which the plaintiff could have no recovery even if supported by evidence, is not reversible error where the jury was permitted to find for the plaintiff upon properly submitted issues. In a common law action against a master for the death of a servant alleged to be caused by the inhalation of sulphur fumes, an instruction that the jury could consider the servant's appearance of good health in determining whether the master was negligent in failing to warn of the dangers involved was properly submitted on the question of what the master should have known and anticipated. In such case, testimony of the man in charge of the sulphur kettle that he would have moved it to any location the servant desired warranted submission of the servant's assumption of the risk.
CASE, for negligence to recover for the death of the plaintiff's intestate. The deceased, a man fifty-six years of age, died July 1, 1943, allegedly due to exposure to sulphur fumes on the preceding day while in the employ of the defendants. The defendants were engaged at the time in the manufacture of anti-torpedo nets. For this purpose cement floors were laid in two large granite sheds. In order that the nets might be strung on pins, sockets were placed in holes drilled in the floor in diamond shaped patterns. Molten sulphur was used to bind the sockets in the holes. The job of Mr. Lindberg was to assist in making the holes by guiding a drill held by another. The sulphur, which came in stick or brimstone form, was melted in a kettle having a capacity of about two and one-half gallons. The work of the deceased brought him as close as five feet to the kettle at times and then as far as 35 feet from it. He worked from seven in the morning until four o'clock in the afternoon with a half hour out for lunch. The melting of the sulphur began at nine or ten o'clock in the morning and continued while Mr. Lindberg was at work. He complained of the effects of the fumes and suffered several spells of vomiting prior to his death shortly after noon the following day.
At the time of the exposure to the sulphur fumes, Mr. Lindberg was not a well man. He had been treated during the last two years of his life for what the doctor called digestive disturbances, liver trouble, heart trouble consisting of a leaky valve and weakened muscles, and silicosis.
The medical expert that performed the autopsy testified that the immediate cause of death was a pulmonary embolus with acute cardiac dilatation. It was the opinion of this doctor that the strain of violent vomiting injured the blood vessels of the mesentery region, causing a thrombus to form, which was dislodged and worked its way into the right pulmonary artery. The thrombus would not have been released if it had not been for the sclerotic condition of the mesentery blood vessels. The attending physician did not agree that the thrombus found could have come from the mesentery tract and, although he had stated on the death certificate that coronary thrombosis was the fatal cause, gave as his opinion that death was due to sulphur fumes. He believed that they brought on gastritis and that the strain of the vomiting caused dilation of the heart, collapse of pulmonary circulation and stassis, followed by the formation of a pulmonary thrombus.
The plaintiff alleged negligence of the defendants in failing to warn and instruct, to provide a safe work place and suitable appliances and equipment and to establish rules, regulations and methods for the conduct of the work. The case was tried by a jury with a view. A verdict was returned for the defendants. A bill of exceptions was allowed the plaintiff by Leahy, J., which included three relating to certain instructions and three to the failure to give certain requests. A bill of exceptions was also allowed the defendants because of the denial of their motion for a directed verdict.
The defendants had accepted the provisions of the workmen's compensation act.
Robert W. Upton and Frederic K. Upton (Mr. Frederic K. Upton orally), for the plaintiff.
Sulloway, Piper, Jones, Hollis Godfrey (Mr. Piper orally), for the defendants.
In the portion of the charge dealing with the fellow servant doctrine, the Court said: "The defendant claims further if you find the kettle containing the sulphur caught fire, and it caught fire through the negligence of a fellow employee, or as more often referred to, a fellow servant, and this manner gave off the fumes which helped cause the death of Mr. Lindberg, then the negligence was solely that of the fellow servant and not of the master, and so there is no liability on the part of the master." The plaintiff excepted to this submission of the issue of whether the kettle caught fire because of the negligence of a fellow servant, on the ground that there was no evidence of such negligence. If the language of the Court be taken in its narrow and literal meaning as applying to the ignition of the flames and not inclusive of allowing the fire to continue, a search of the record confirms this objection and discloses no testimony from which it could be found that any fire was caused by negligence on the part of the employee in charge of the kettle. The mere fact that he paid no attention when it did catch fire is not evidence that by due care he could have prevented the flames.
It is true that an instruction on an issue that is not supported by the evidence is erroneous. 3 Am. Jur. 630. "Instructions must be based on the evidence adduced within the pleading; and where not so predicated they should not be given, for the tendency of instructions not thus grounded is to confuse and mislead the jury." 1 Reid's Branson, Instructions to Juries (3d ed.) 331, 332.
However, although an abstract proposition having no application to the issues should not be given, even though correct in principle, such an instruction will not ordinarily warrant a reversal unless the complaining party has been prejudiced. 1 Reid's Branson, Instructions to Juries (3d ed.) 347, 348. "The giving of instructions which are abstract or not authorized by, or applicable to, the pleadings and evidence will not constitute a ground for reversal, where no prejudice results to the complaining party; and this is so whether or not the instructions state correct rules of law." 5 C.J.S. 1118. This jurisdiction has adopted as a test for determining whether or not an erroneous instruction is reversible error the inquiry whether "the jury could have been misled." Charrier v. Railroad, 75 N.H. 59, 64; West v. Railroad, 81 N.H. 522; Stocker v. Railroad, 84 N.H. 377.
The objectionable instruction was to the effect that the plaintiff could not recover for any negligence of the fellow workman in allowing the sulphur to catch fire. This is not an instance of allowing a party to prevail upon non-existent evidence. It is a denial of recovery by the plaintiff upon a ground that would not have sufficed for recovery if the evidence had existed. If the Trial Court had appreciated the lack of evidence, the instruction would not have been given. But it is not perceptible how the plaintiff's position would thereby have been improved. Her right to recover would have been no greater in the absence of the instruction, than it was under the one given. In either case the right to recover depended upon other issues.
The instructions in the same paragraph as that objected to and immediately following those relating to the fellow servant rule informed the jury: "However, this does not relieve the employer of liability where he creates a dangerous condition by supplying materials which are dangerous to an employee and the fellow employees are not warned or are justifiably ignorant of the existence of such danger. An employer is responsible for a dangerous condition of his premises, under this rule, resulting from acts of his servants which he authorized or ratified. It is for you to determine the true situation and to render your verdict according to your findings." The plaintiff was not prejudiced by the instruction to which exception was taken. It was still open to her to succeed, if the jury could find the necessary facts, upon any or all of the various issues submitted with respect to the negligence of the defendants.
The jury was properly told that they could consider Mr. Lindberg's appearance of good health in determining whether the defendants were negligent in failing to warn. An important issue in the case was what the defendants should reasonably have anticipated with respect to the effects of the sulphur fumes. There was evidence of ill health on the part of the deceased. His appearance of good health had a direct bearing on what the defendants should have known and anticipated.
On the issue of the assumption of the risk, the jury was told that Mr. Lindberg could have had the sulphur kettle moved to a different location in the shed at any time he wanted. Exception was taken to this on the ground that there was no evidence to warrant a finding that he had any authority over the kettle. The instruction was justified on the testimony of the man in charge of the kettle that he would have moved it if Mr. Lindberg had asked him and that of one of the defendants that the location of the kettle was entirely up to the men.
The defendants excepted to the failure of the Court to give their requests Nos. 5, 6 and 7. A reading of the charge shows that these requests were adequately covered.
In view of the fairness of the trial, it is unnecessary to consider the difficult question raised by the defendants' exception to the denial of their motion for a directed verdict, whether the defendants as ordinary men without expert knowledge of medical science should have anticipated that the use of sulphur would have caused the death of Mr. Lindberg.
Judgment on the verdict.
DUNCAN, J., did not sit: BLANDIN, J., concurred in the result: the others concurred.