146 P. 555 | Utah | 1915
The plaintiff brought this action to recover damages for an alleged personal injury. In the complaint it is alleged that he was in the employ of the defendants, working underground, as a miner and mucker in a mining and drain tunnel. The negligence charged is a failure to furnish him a safe place to work. The particulars charged are that a loose rock weighing about 200 pounds was suffered and permitted to be unsupported and hanging from the side of the tunnel, which fell and struck him. The answer put in issue all the allegations of the complaint, including that of employment, and presented issues of contributory negligence, assumption of risk, and fellow service. The case was tried to the court and jury. The plaintiff adduced his evidence and rested. The defendants offered no evidence. A verdict and judgment resulted in favor of the plaintiff, from -which the defendants appeal.
All the issues presented by the complaint and the answer were submitted to the jury. Among others, the court gave this charge :
“ (11) It is the duty of the master to use ordinary care to provide a reasonably safe place for the servant to d0‘ the work which he is engaged to perform, and, if a servant is injured by reason of a failure to use such care, the breach of such duty is negligence for which the master is responsible to the servant. ”
“(15) You are instructed that the duty imposed by the law upon a master to use ordinary care to furnish a reasonably safe place for the servant to work in is a positive duty owing by the master to the servant and is nondelegable; that is to say, that the master cannot relieve himself from the obligations resulting from a failure to perform said duty by leaving the same to be performed by some other person or*508 servant, and the master must see to it, at his peril, that such duty is performed.”
Complaint is made of it. No complaint is made as to a want of evidence to support the allegations of employment. There is testimony to show a relation of master and servant. What is urged against the first charge is that it “is not applicable to the facts in this case and being possible of misconstruction,” and that “the doctrine of safe place is not involved in this ease under the uneontradieted evidence”; against the second, “not applicable to the facts and is misleading, in this, it appears that the place in question was by its very nature dangerous and not a safe place, and the very purpose of the work being to make a dangerous place safe.”
The 'defendants requested this:
“ (1) Even should you find from the evidence in this case that the place where plaintiff was working at the time of his injuries was an unsafe place of work, and that his employer failed to use ordinary care to make said place of work safe, the plaintiff cannot recover in this action if you further find that the plaintiff knew of its dangerous condition, and -with such knowledge continued to -work there.”
“ (4) Should you find from the. evidence in this ease that prior to his alleged injuries the plaintiff had notice that the*510 rock which caused said injuries was loose or likely to fall, and that after such notice he went into the ditch to the point where he was injured, your verdict must be in favor of Free & Taylor and against the plaintiff.”
It, .however, as matter of law, is not presumable from mere knowledge alone of the defect or danger created by the master’s negligence and the servant’s continuing in the work. There are further elements entering into it, the servant’s comprehension and appreciation of th.e risk to which he was exposed. From knowledge of the existence of certain abnormal conditions, considered in connection with the facts and circumstances of the case, the servant’s comprehension and appreciation of the risk and danger, and a waiver on his part, may, of course, be inferred, and in some instances, on undisputed evidence, may be conclusively presumed. It, however, will not be so presumed on the broad and general hypothesis stated in the request. 3 Labatt, Mas. & Serv. (2d Ed.) p. 3214. As there stated, plaintiff’s knowledge “of its dangerous condition” and continuing work barred recovery. Knowledge of what “dangerous condition”? Knowledge “that the place where plaintiff was working was an unsafe place to work.” But in what respect? The request implies in any respect. The charged danger, alleged to have been created by the master’s negligence and to which the plaintiff was exposed and which caused his injury, was the master’s failure to support or take down a large, loose, hanging rock. What knowledge had he of that, not necessarily of the particular rock which fell, but of the condition of the roof and sides of the tunnel as to rock or ground likely to fall or cave, and what appreciation had he that by continuing his work he likely or probably would receive injury by roek or earth falling and striking him? He, at the time of the injury, was not, nor did the work performed by him require him to be, under the rock. He w'as working in a ditch about twelve feet away. Though he may have known, notwithstanding his testimony that he did not know, that the rock was loose and likely to fall, still he may not have appreciated that he, twelve feet away, working in the ditch, was exposed to risk of injury from such source. But, had the request been given, that would not have made any difference, for the jury would have been bound to find that the plaintiff had waived his
Further complaint is made of misconduct of one of plaintiff’s counsel in his closing argument to the jury. The record, as to that, recites:
No other objection was made. The court’s action was not invoked to require a retraction, to strike the remark, to warn the jury to disregard it, or to make any ruling. Because of that nothing reviewable is presented, unless it may be said that the remark was so flagrantly improper and harmful that no ruling could have cured the harm done. On the face of it, the remark looks innocent enough and harmless. It is claimed to be improper and prejudicial because of this: With other testimony to support the allegation in the complaint as to the relation of master and servant and the employment of the plaintiff by the defendants, the plaintiff also put in evidence a policy of indemnity insurance issued to the defendants, by the terms of which they were insured against loss (not exceeding $5,000 for any one injury) from the liability imposed by law upon the insured for damages on account of bodily injuries accidently suffered by any employe of the insured in the prosecution of the work in question, and testimony that the defendants, in pursuance of the policy, reported the accident and plaintiff’s injury, to the insurer, and when the summons in this action was served on
“You are instructed that the insurance policy which has been received in evidence in this case was by the court admitted in evidence and can be by you considered for one purpose only, to-wit, as a matter to be considered by you, for whatever you may deem it worth, in determining the question of whether or not the defendants' Free & Taylor were the masters of the plaintiff at the time of his alleged injuries for which he is now seeking recovery in this action.”
“You are instructed that the insurance company is not a party to this action, and in arriving at your verdict in this ease you should "not speculate relative to whether or not said insurance company has or may have an interest "in the outcome of this case. The only persons whose liability can be determined in this case are the defendants Free & Taylor.”
The evidence was such that without warning, as was done, the jury might make, as did counsel, an improper and unauthorized use of the evidence-. It, however, is not to be presumed, in the face of the charge, that the jury rejected what the court told them, and accepted what counsel said. Were we to act on presumptions of that bind and base reversals upon them, we would hardly affirm anything.
The judgment of the court below is therefore affirmed, with costs.