Mulholland

This action was brought by the plaintiff to recover damages for personal injuries alleged to have been suffered through the negligence of appellant. As to the second defendant named, judgment of nonsuit was granted and as to which no complaint is made upon this appeal. The jury sitting at the trial of the action returned a verdict in favor of plaintiff for the principal sum of $10,875, upon which verdict judgment was entered. This appeal is taken from the judgment and from an order denying the motion of appellant for a new trial.

Prior to the twenty-fifth day of January, 1910, appellant was engaged under contract as an independent contractor in erecting a certain apparatus for the manufacture of gas. At the date above mentioned the apparatus had been practically completed, but had not yet been accepted by the gas company for which it was being built, and there remained some work of finishing and adjusting to be done upon it. This was the condition of the work when plaintiff applied to one White, who was in full charge of the construction work, for employment. Plaintiff, a young man, twenty years of age, was a competent plumber and pipefitter and had worked for about two weeks in…

I dissent from the order denying a rehearing of this cause. Aside from any of the matters discussed in the opinion of the district court of appeal, there is a question presented by the record, which we are bound to notice notwithstanding the omission of that court to do so; and this, for the reason that the amount involved brought the cause within our jurisdiction, by direct appeal, and its assignment to the district court for hearing and decision does not absolve us from the obligation to consider every substantial assignment of error relied upon by the appellant.

The trial judge gave to the jury the following instruction: “Defendant’s claim of contributory negligence on the part of the plaintiff as set out in the verified answer of the defendant presupposes the existence of negligence on the part of the defendant, for if there was no negligence on the part of the defendant, .Western Gas Construction Company, there could be no contributory negligence on the part of the plaintiff, J. J. Mulholland. The contributory negligence as used in these instructions means such negligence, if any, on the part of the plaintiff contributing .directly or approximately to the accident, and…