A master may remain liable for a certain time for a failure to
use reasonable care in furnishing a safe place for the servant to
work, notwithstanding the servant's appreciation of the danger, if
he induces the servant to keep on by a promise to remove the source
of danger.
Even if it is open, it will require a strong case to induce the
appellate court to review the discretion of the trial court in
allowing leading questions; in this case, the witness being a
foreigner who seemingly did not understand the English language,
there is no ground for revision.
This Court will not go behind the decision of the supreme court
of a territory upon a matter of local practice in order to reverse
the judgment upon a technicality and an assumption contrary to a
fact appearing in the record.
Page 226 U. S. 163
In this case, the trial court appears to have properly
instructed the jury in regard to damages to which the plaintiff was
entitled for personal injury, and did not, as to future pain, etc.,
go beyond conservative rules laid down in such cases.
The court may, within conservative rules, instruct the jury that
they may, in estimating the damages of a plaintiff in a personal
injury suit, consider loss of time with reference to ability to
earn money, temporary or permanent impairment of capacity to earn
money, disfigurement and pain, past or reasonably certain to be
suffered in the future.
See Chicago, Milwaukee & St. Paul
Ry. Co. v. Lindeman, 143 F. 946.
Where the charge directs that the jury deduct from damages
amounts paid under a release executed by plaintiff, if the jury set
the release aside, it is immaterial what the amounts so paid
represented as the transaction was rescinded by the verdict.
15 N.M. 232 affirmed.
The facts, which involve the validity of a verdict for personal
injuries, are stated in the opinion.
Page 226 U. S. 167
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is an action by a servant for personal injuries. The
declaration alleged that it was the plaintiff's duty to cook
brewer's mash in a cooker; that the cooker was so out of repair
that the plaintiff was unwilling to use it, but that the defendant
requested him to go on until it could be repaired, and promised
that it should be within a very
Page 226 U. S. 168
short time; that the plaintiff did go on, relying upon the
promise, that the cooker gave way, and the plaintiff was badly
scalded. The defendant denied the allegations and pleaded
plaintiff's contributory negligence and a release. In a replication
the plaintiff denied his mental capacity at the time the release
was made. There was a verdict for the plaintiff, subject to special
findings which by the law of New Mexico control (
Walker v. New
Mexico & Southern Pacific R. Co., 165 U.
S. 593), the defendant alleged exceptions. These were
overruled by the supreme court of the territory, and the judgment
affirmed.
The first point argued is that the defendant was entitled to
judgment on the special findings because the fourth was that the
cooker, at the time, was not in such a bad condition that a man of
ordinary prudence would not have used the same. But the eleventh
was that the defendant did not use ordinary care in furnishing the
cooker and in having it repaired, and the sixth, that the defendant
promised the plaintiff that the cooker should be repaired as an
inducement for him to continue using it. So it is evident that the
fourth finding meant only that the plaintiff was not negligent in
remaining at work. Whatever the difficulties may be with the theory
of the exception, 1 Labatt, Master & Servant, ch. 22, §
423, it is the well settled law that, for a certain time, a master
may remain liable for a failure to use reasonable care in
furnishing a safe place in which to work, notwithstanding the
servant's appreciation of the danger, if he induces the servant to
keep on by a promise that the source of trouble shall be removed.
Hough v. Texas & Pacific R. Co., 100 U.
S. 213.
Next it is argued that the judgment should be set aside because
the court allowed somewhat leading questions to be asked to bring
out the plaintiff's reliance upon the defendant's promise. If this
matter is open, it is enough to say that the plaintiff is a German,
and seemingly did not
Page 226 U. S. 169
understand the questions put to him very well, and that it would
require a very much stronger case than this to induce an appellate
court to revise the discretion of the trial court and grant a new
trial upon such a ground.
Northern Pacific R. Co. v.
Urlin, 158 U. S. 271,
158 U. S. 273.
The next point, that there was no credible evidence to sustain the
verdict, so far as it does not rest on the preceding one, was for
the jury, not for this Court.
Fourthly, it is argued that the court erred in refusing to
instruct the jury that the burden was on the plaintiff to prove his
incompetence at the time of making the release. It seems from the
record that an instruction to that effect was given, but that it
was omitted from the bill of exceptions. The supreme court of the
territory took notice of the fact, and we certainly should not go
behind their decision upon a matter of local practice in order to
reverse a judgment upon a technicality and an assumption contrary
to the fact.
Santa Fe County v. Coler, 215 U.
S. 296.
Finally it is said that the instructions as to the measure of
damages were wrong. The court instructed the jury that they might
consider the plaintiff's loss of time with reference to his ability
to earn money, the impairment of his capacity to earn money,
whether temporary or permanent, disfigurement, and pain, past or
reasonably certain to be suffered in the future, and that they
should deduct from the amount, if any, the disbursements made under
the release which the finding of the jury set aside. It is objected
that a part of the disbursements were wages during the plaintiff's
disability; but it did not matter whether they were or not if the
transaction was rescinded. With regard to future pain, etc., the
judge did not go beyond the conservative rule laid down in such
cases as
Chicago, M. & St.P. Ry. Co. v. Lindeman, 143
F. 946, 950. The rest of the argument is a discussion of evidence,
with which we have nothing to do.
Judgment affirmed.
