Kauffman v. Maier

Citations

• 94 Cal. 269
• 18 L.R.A. 124
• 29 P. 481
• 1892 Cal. LEXIS 674

Syllabus

<p>Appeal — Review of Order Granting New Trial — Grounds of Order. — Upon an appeal from an order granting a new trial, the appellate court •will review the entire record upon which the order was based, and if the record discloses any error which would have justified the trial court in making the order, the order will be affirmed, irrespective of the particular ground given by such court, whether in its opinion or by a statement in the order itself.</p> <p>Id.—Limitation of Rule — Review of Conflicting Evidence.—The foregoing rule has a limitation in cases where one of the grounds upon which the new trial is sought is the insufficiency of the evidence to justify the verdict or decision. If in such a case the trial court, in its order granting a new trial, excludes this as a ground of its action by direct language, the appellate court will accept the conclusion of the trial court, and not re-examine the evidence.</p> <p>Negligence— Master and Servant — Defective Shaft ■—Contributory Negligence — Voluntary Act of Servant out of Scope of Employment— Nonsuit. —A servant employed in a malt-room was engaged in cleaning the malt-elevator, and having an endless towel upon his shoulder, which impeded him in his work, threw it over the projecting end of a shaft, about six feet above the floor, the end of which had been battered by hammering, so that its edges were jagged and rough, and the engine was afterwards started, causing the shaft to carry the towel around with it, and he, thinking the towel, in its movements, might interfere with his work beneath the shaft, attempted to remove it, and in so doing was caught by the shaft and injured. The act of the servant in hanging the towel upon the shaft had no connection with the service for which he was employed, hut was his voluntary act, done by him for his own convenience. Held, that he is not entitled to recover from the master for the injury received by him as the result of such act, and that a nonsuit should be granted in a