c37:No. 1087

PUTNAM, Circuit Judge
(concurring). The plaintiff’s declaration was amended twice, once by formal amendment, and then by a paper entitled “Specification.” The statute referred to in the opinion in its second section permitted the plaintiff to recover on account of the proof of an efficient negligence of a fellow servant sufficient to cause the injury. The case, as stated by the plaintiff’s brief, was as follows:
“On tills machine, as is shown by the photographs, was a hopper into which the suet was fed. At the bottom of the hopper was a revolving worm, which ground up the suet. The machine in question was at the left of the table onto which the snet was shoveled by the plaintiff’s helper, and in the ordinary course of the work the plaintiff stood on the bench in front of the table, took up the chunks of suet as they were shoveled onto the table, and put them in the machine, which ground them to pieces. The plaintiff testified that he liad been struck by his helper several different times before, that ho was not watching the helper when he got hurt, that he was struck in the breast, but in spite of that fell forward, and not backward, and in such a manner that his left hand went into the hopper and down six inches onto the worm.”
It is apparent that -the real issue in the case was the truth of the plaintiff’s statement which we have referred to. Although the position occupied by the plaintiff was dangerous in certain respects, and although he knew the danger and might be said to have assumed it, yet the efficient cause of the injury was the carelessness of tiie coservant in striking, the plaintiff as he did, and there was in the case no real question of contributory negligence or assumption of risk.
At the close of the judge’s charge there was a long discussion between the defendant’s counsel and the court because the court, as the defendant said, had not instructed the jury properly on the question cf contributory negligence 'or the question of the assumption of risk; but there was no basis for instructions on either point, and, as the result of that discussion, no prejudice came to the defendant at the trial.
There was ;put into the case the statement by the plaintiff made a few days after the accident, and some question was made whether the statement should go in as an admission or as evidence, which was of no real consequence to the defendant, because the court instructed the jury that, if they believed the statement, it was the end of the plaintiff’s case. It was not necessary to explain to the jury the reason therefor.
No objection was made at the time of the trial, or until the present argument, because in the long sentence covering the sum of the plaintiff’s entire statement referred to the court instructed the jury that, if they believed “all” the statement, they should find a verdict against the plaintiff. Some criticism is now made on account of the use of the word “all,” but none was made at the trial; and that, of course, was one of those minor criticisms which should have been specifically called to the attention of the court and objected to on the spot.
The basis of the discussion aforesaid, and of the grounds for asking a new trial at the present time, is the assertion of the defendant’s position about contributory -negligence or the assumption of risk; but the true issue was the negligence of a fellow servant, as we have said. The verdict was fully justified, unless the jury felt themselves bound by the statement made by the plaintiff, which we have referred to, and, of course, they were not thus bound.

Passage view · GavelSight