Opinion
Argued April 4, 1912
Decided April 30, 1912
Irving W. Teeple and William A. Jones, Jr., for appellant.
Thomas J. O'Neill and L.F. Fish for respondent.
On each of the three trials of this action there was a verdict for the plaintiff. In denying the motion of the defendant made on the minutes to set aside the verdict on the last trial, the presiding justice said: "The verdict upon both former trials was set aside upon motion by the learned justices who presided, and I am in accord with their opinion that the evidence does not warrant a verdict for the plaintiff. If this were the first or even the second trial I should grant the defendant's motion unhesitatingly." The motion, however, was denied upon the ground that the trial justice should not again interfere with the judgment of the jury upon disputed questions of fact.
Although notice under the Employers' Liability Act is alleged in the complaint, none was offered on the last trial, which proceeded on the theory of negligence according to the common law. All the evidence tending to show how the accident occurred was given by Mr. Conger, a witness called by the plaintiff and claimed by her to be interested and hostile. She insists that the jury could believe the part of his evidence that was favorable to her and reject the rest and that thus the verdict finds sufficient support.
Assuming that there was evidence to show negligence on the part of the defendant, still the burden was upon the plaintiff to furnish some evidence to show that her intestate was free from contributory negligence. It was not incumbent on the defendant to show that the decedent was negligent, but on the plaintiff to show he was not negligent. Even if the testimony of Conger, the only eye-witness, in so far as it was unfavorable to the plaintiff is rejected in toto, still there is nothing to take its place and no evidence tending to show that the decedent was free from negligence on his part. The jury could not find that Quick was careful because they gave no credence to Conger's testimony that he was careless. They could not find freedom from fault without some evidence, direct or circumstantial, tending to show it and there was none. No witness was called by the defendant and no witness saw any part of the accident except Conger and if his testimony is true the decedent was shown to be guilty of contributory negligence as matter of law. If his testimony is false, either wholly or as to any parts that may be selected, still there is no evidence of the absence of contributory negligence. While the plaintiff vouched for his credibility to a certain extent by placing him on the stand, she had the right to claim that he was mistaken and to contradict him, not for the purpose of impeachment but to prove the facts as they really were. She called no one to contradict him and when his testimony is so analyzed and separated as to place on one side all that is favorable to the plaintiff and on the other all that is favorable to the defendant, accepting the one as true and rejecting the other as false, still the plaintiff failed to meet the burden of proof cast upon her by law of furnishing some evidence that the intestate exercised some care. According to either theory he assumed control of the situation, chose his own method and voluntarily went into the pit, a place of known and obvious danger, without taking any precaution to protect himself. He unnecessarily exposed himself to the descending weights. After making preparation to stand on the ladder in a safe place, he abruptly and without any apparent excuse or reason, left the ladder unused and went directly beneath the weights, which were in plain sight coming down upon him. There is no evidence that he was told to go into the pit and none to warrant the inference that he went there except on his own motion. He knew the situation. The grooves were not cased or concealed and the counterweights running therein could be plainly seen. The elevator had been kept in motion by his express direction in order to enable him to do his work efficiently. Even if he did not direct the operator to run it up just before he jumped into the pit, as Conger testified, he knew the power was on and that if it was run up the counterweights would come down and endanger any one who was in the pit. Instead of using the ladder which would have been safe, or waiting until the elevator reached the top floor when the counterweights would have been down and no longer dangerous, he jumped into the pit, which was unsafe, without, so far as appears, giving any notice of his intention, making any request that the elevator should not be moved, or doing or saying anything to protect himself from a danger as obvious as it was extreme.
As there was no evidence tending to show that the decedent was free from contributory negligence, the motion of the defendant for a nonsuit should have been granted.
The judgment should be reversed and a new trial ordered, with costs to abide the event.
CULLEN, Ch. J., GRAY, HAIGHT, WERNER, WILLARD BARTLETT and CHASE, JJ., concur.
Judgment reversed, etc.