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ting all the articles from Brunot's Island to the western end of the bridge,” whereby plaintiff was thrown from the steps and suffered the injury complained of. The only evidence to support this allegation is, as already stated, that the foreman, in giving the plaintiff the order to fetch the tools from Brunot's Island, told him to "hurry up,” the reason for so telling him being that certain of the work under the foreman's charge would be delayed until the tools were brought. The trial resulted in a verdict and judgment for the plaintiff, and the case is here brought upon a writ of error sued out by the defendant.
The assignments of error raise a question as to the propriety of certain amendments to the record allowed by the court upon the petition of the plaintiff before and at the trial. They also allege objections to certain portions of the charge of the court to the jury, brought up in the record upon exceptions thereto duly signed, and they also allege that the court improperly refused peremptory instructions to the jury, upon the whole evidence, to render a verdict for the defendant.
The view taken by this court of the last-mentioned assignment of error, renders it unnecessary to consider the questions raised by the others. We therefore confine ourselves to the consideration of this last-mentioned assignment. The negligence averred in the declaration is the failure of the corporation defendant, in performing its primary duty as master, to sufficiently safeguard the place in which, and the conditions under which, the plaintiff, as its employé, worked. There is an entire absence of conflict in the testimony sent up in the record, as to material facts. Neither these facts nor any legitimate inference to be drawn from them, seem to us to justify a finding by the jury, that the plaintiff suffered the injuries complained of, by reason of any negligence of any primary duty of the defendant, as master and employer, to the plaintiff, as servant or employé. The premises where the accident happened were not the property of nor controlled by the defendant, as alleged in the declaration. That defendant's employés had, with others, the right accorded them of using the bridge and the stairs as a means of access to the island, did not render the defendant responsible for conditions that might exist between the island and the structure which it was engaged in erecting. The plaintiff, though a minor, was not of tender age, he being 16 years and 10 months old at the time of the accident. There is no testimony showing that he was otherwise than as active and strong as boys of that age, living in the open air and accustomed to work, are apt to be. His weight was 130 pounds, indicating average size and strength for his age, and the rate of his wages, $2.25 a day, tends to show that he was not regarded by his employers as inferior in bodily strength or intelligence. There was nothing unusual about the errand upon which he was sent on the morning of the accident, or the occasion for it. Nothing appears in the circumstances testified to, to render the order of the foreman to "hurry” an improper one. A boy of plaintiff's age, accustomed to the work in which he was employed, was as capable of taking care of himself in his progress to and from the island, a distance of a half or three-quarters of a mile, as were any of the adult workmen of defendant, or as the foreman himself. Indeed, it would not be unreasonable to expect that such an errand would be better and more safely performed by a boy of the intelligence and activity belonging to his age, than by an older person. He had covered the entire route in going to the island, and must have observed the condition of the stairs, if they were dangerous enough to attract his attention, and it can hardly be said that he was exposed to any special danger in ascending the steps on his return. He had been there more than once before on the same kind of an errand. That he undertook to carry all the articles for which he had been sent, at once, cannot be imputed to the defendant as negligence, even if he so understood the order of the foreman. His own judgment seems to have been that he was able to do so, from the fact of his having undertaken to do it, and having safely ascended the first flight of the stairs. The plaintiff seems to have been an active and willing lad, and to have performed the errand upon which he was sent with zealous alacrity. The deplorable consequences of his slipping with his unwieldy load were the result of one of those accidents, the possibility of which attends every one in his progress from place to place, whether on business or on pleasure. One undertaking einployment of the character of that undertaken by the plaintiff, undertakes the ordinary risks incident thereto. He must needs go from place to place outside of and away from the particular locality where the employer's work is being carried on. Indeed, when leaving the premises of his employer, such a person can hardly be said to have a definite "place to work in,” within the meaning of the rule as to the duty of the master to render reasonably safe the place in which the servant is to work. It is absurd to suppose that the master's duty to provide a reasonably safe place in which his servant shall work, extends to safeguarding the route of every journey he may be required to make in fetching and carrying, whether messages or portable articles.
146 F. 24
There is no evidence that the foreman knew what the condition of the stairs was, as to being icy on any part of them. But even if we are to assume that he had the same knowledge as the one witness who testified that at 9 o'clock that morning, when he used them, they were a "little bit slick—a little icy,” it cannot be imputed as negligence to the defendant, that he, the foreman, did not admonish the plaintiff in regard to their condition. It was not a permanent condition, much less one due in anywise to any dereliction on the part of the defendant. It was a casual condition, due to constantly recurring states of temperature, conditions that were observable by the most ordinary intelligence, and at such seasons requiring everywhere and at all times to be guarded against, and demanding only the most ordinary care to avoid their danger. In this case, it was a danger of which the servant was better cognizant than the master, and one which the admonition of the master would not have rendered less. It was clearly not a danger as to which there was a duty of instruction by the employer. The case has no analogy to one where an inexperienced person, or a boy of tender years, is placed at work with or near dangerous machinery, without special instruction and caution as to the danger incurred, nor is it a case, as we have seen, in which the rule that a master must use ordinary care to provide a safe place in which the servant shall work, is applicable. The injury complained of, sad and deplorable as it undoubtedly is, resulted from an accident incident to everyday life, and no more capable of being foreseen by the defendant than by the plaintiff.
From what has been said, we think it must be apparent that no inference of negligence imputable to the defendant can be drawn from the undisputed facts testified to before the jury. Even if Riddle, the foreman, stood in the relation of vice principal to the master, in giving the order to the plaintiff testified to, there was nothing in the physical situation, the circumstances surrounding it, or the mutual relations of the parties, from which a conclusion could be reasonably drawn, that it was his duty at the time of giving the order, to have instructed the plaintiff as to the existence of ice on the steps. In what other way he could have protected the plaintiff, is not suggested. It is true, that it is contended by the appellee, that from the facts of the case, as above recited, an inference of negligence on the part of the defendant can legitimately be drawn, in that the plaintiff was not required by the foreman to make two trips instead of one, in bringing the tools. It is also alleged in the declaration, that plaintiff was under compulsion to bring the tools at once, and thus overload himself, and also to proceed with undue haste. There is absolutely no evidence of such compulsion on the part of the foreman, and none can be inferred from the simple order to bring the tools and to hurry. The compelling motive, so far as it can be inferred from the evidence, seems to have been a commendable zeal on the part of the plaintiff to perform the work he had undertaken promptly and to the satisfaction of the foreman.
In the view that there was no evidence of negligence on the part of either the master or of the foreman, it is unnecessary here to discuss any question of the relation of fellow servant between the foreman and the plaintiff, or the assignments of error as to certain parts of the charge of the court to the jury.
For the reasons stated, we are constrained to the conclusion that the court erred in refusing the defendant's request to charge the jury, that under the evidence in the case the verdict must be for the defendant, and the judgment below is therefore reversed.
SPARKS V. TERRITORY OF OKLAHOMA.
(Circuit Court of Appeals, Eighth Circuit. June 7, 1906.)
No. 2,347. 1. LARCENY-EVIDENCE-RELEVANCY-FACTS-DECISION.
Upon a trial for larceny, the question was whether the defendant stole some cattle or bought them of one Read without notice that they had been stolen. There was evidence which tended to show that the defendant paid Read for the cattle $250 in currency, and gave him a draft for $710 on a commission company, payable to Read's order, and that the latter sent the draft to the company in a letter, wherein he directed them to place its proceeds in a certain bank to his credit. The territory produced three bankers, who testified, over the defendant's objection that their testimony was incompetent, irrelevant, and immaterial, that there was no method known to banking institutions whereby such a draft could be paid without the indorsement of the payee. Held, this evidence was ir
relevant and immaterial, and its admission was error. 2. CRIMINAL LAW-EVIDENCE-ADMISSION OF IMMATERIAL OR IRRELEVANT TES
The admission of irrelevant or immaterial evidence is a fatal error, because it tends to withdraw the attention of the jury from the actual issues in the case, to lead them to decide it upon extraneous questions, and thus to violate the right of the parties to a trial of the case upon the law and evidence applicable to the real issues it involves, and upon those only.
[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Criminal Law, §
3137.] 3. SAME-EVIDENCE-GENERAL OBJECTION, WHEN AVAILABLE.
The general objection that evidence is incompetent, irrelevant, and immaterial is sufficient when the reason for the objection is readily discernible. But where the ground of the objection is not suggested thereby, it will not avail in an appellate court.
[Ed. Note.--For cases in point, see vol. 14, Cent. Dig. Criminal Law, $S 1633-1637.]
(Syllabus by the Court.)
In Error to the Supreme Court of the Territory of Oklahoma.
Louis C. Boyle (W. F. Guthrie and A. F. Smith, on the brief) for plaintiff in error.
Don C. Smith (W. O. Cromwell, on the brief) for the territory of Oklahoma.
Before SANBORN, HOOK, and ADAMS, Circuit Judges.
SANBORN, Circuit Judge. The defendant below was tried and convicted of larceny of 32 steers in the territory of Oklahoma about September 1, 1902. There was evidence at the trial that these steers were the cattle of one George Storm; that they were in a pasture about 17 miles from the town of Woodward, in Oklahoma; that they disappeared from this pasture about August 25, 1902; that the defendant put them in a pasture within three miles of Woodward on that day; that he shipped them from the station of Woodward to Ben L. Welch & Co., commission merchants at Kansas City, on August 27, 1902; and that Storm found them there on the next day, and recovered them. The defendant testified that he had been engaged in purchasing cattle for many years; that on August 25, 1902, he had been out hunting, and was returning toward Woodward when he overtook two men driving these cattle toward that town; that one of them informed him that his name was F. E. Read, and that the cattle were for sale; that he bought them of Read, took a bill of sale of them, which he produced at the trial and paid him $250 in cash, and gave him a draft for $710 on Ben L. Welch & Co., to whom he shipped the cattle. The draft was received by Welch & Co., in a letter which reads in this way:
“Woodward, 0. T. Aug. 25, 1902. "Ben Welch Commission Co., Kansas City, Mo.-Dear Sir: Inclosed please find draft on your firm for seven hundred and ten dollars, given to me by A. G. Sparks in part payment on 32 head of steers. Please send amount of same to my credit at Woods County Bank, Alva, Okla. “Yours truly,
F. E. Read.”
Here is a copy of the draft:
"The Gerlach Bank.
“Woodward, Okla., Aug. 25, 1902. "At sight pay to the order of F. E. Read $710.00, seven hundred and ten dollars, part payment on thirty-two steers.
A. G. Sparks. "To Ben L. Welch & Co., Stock Yards, Kansas City, Mo."
Welch & Co. were seasonably notified that the cattle had been stolen, and they never paid the draft. Counsel for the territory produced three bankers, and asked each of them if there was any method known to banking institutions whereby this draft could be paid without an indorsement by the payee, Read. Counsel for the defendant objected to this question, on the ground that it was incompetent, irrelevant, and immaterial. The objection was overruled, and an exception was noted. The first witness answered: "No, there is none. Sometimes, by an oversight, they are; but they should be indorsed.” The second said: “Why, if it pass through the bank's hands, you are always required to indorse it." But on cross-examination he testified that if the draft was attached to the letter of instructions he expected the bank would take it. The third replied that it would be irregular if the draft was cashed without the indorsement of the payee.
Every litigant has the legal right to a fair and impartial trial of the issues which his case presents according to the law and the evidence applicable to those issues alone. The submission to the jury for their consideration of extraneous issues, or of evidence which is neither relevant nor material to the questions upon trial, is a violation of this right, and it constitutes a fatal error, because it tends to withdraw the attention of the jury from the issues actually involved, and to lead them to decide the case upon false issues, and in that way to reach an erroneous result. Northwestern Mutual Life Ins. Co. v. Stevens, 18 C. C. A. 107, 112, 71 Fed. 258, 263 ; Railroad Co. v. Houston, 95 U. S. 703, 24 L. Ed. 542 ; Railroad Co. v. Blessing, 14 C. C. A. 394, 398, 67 Fed. 277, 281; Union Pac. R. Co. v. Field, 137 Fed. 14, 15, 17, 69 C. C. A. 536; Frizzell v. Omaha St. Ry. Co., 59 C. C. A. 382, 384, 124 Fed. 176, 178; Equitable Life Assur. Co. v. McElroy, 28 C. C. A. 365, 376, 83 Fed. 631, 612. The only issue in this case was whether the defendant stole the cattle or purchased them from Read. The draft payable to Read was drawn on Welch & Co., and it was sent directly to the drawee in a letter which purported to be signed by the payee of the draft, and which contained a request to the drawee to place its proceeds to his credit in the bank at Alva. If the signature to the letter was the genuine signature of Read, the payee of the draft, that letter gave ample authority to the drawee to comply with the request it contained, and in that way to take up and discharge its obligation upon the draft. The drawee undoubtedly had the option to act