187 P. 563 | Ariz. | 1920
Lead Opinion
(After Stating the Facts as Above.)— Plaintiff, as the father of deceased, seeks to recover damages under the provisions of chapter 6, title 14, Civil Code. The allegations of the complaint as to the duties of deceased and the manner of the happening of the accident in which he lost his life are in
Among the assignments of error are the refusal of the court to grant defendant’s motion for an instructed verdict made at the close of the evidence, the grounds of the motion being an utter lack of evidence offered or introduced showing, or tending to show, that plaintiff had suffered any damages whatever by reason of his son’s death, and that the undisputed. evidence showed that the accident in which Jesse Gardner lost his life was caused by his negligence. We think both of these assignments are well taken. The statute (paragraph 3158) gives the parent a right of action for the death-of his child if the latter is killed in the line of duty in one of the named dangerous occupations, and the accident causing his death was not due to his negligence. The measure of damages, where the child is an adult, as here, is the reasonable expectation of the parent of pecuniary benefit from the continuance of the life of the child. Dooley v. Seaboard Air Line Ry. Co., 163 N. C. 454, L. R. A. 1916E, 185, and note, 79 S. E. 970. The above rule as to the measure of damages is one, we believe, of universal application to cases where a parent seeks to recover losses that he may have sustained by reason of the death of his child. The expectation must be based upon some fact or facts aside from the relationship. When a child becomes of age, all his earnings and accumulations are his to use as he sees fit. The laws of this state do not require an adult child to contribute his services or his earnings to his parents’ support.
It is quite clear that no substantial pecuniary damages were proven, and that unless plaintiff was entitled to have the case go to the jury on a claim of nominal damages, the jury should have been in
“The failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person, under the existing circumstances, would not have - done.” Baltimore etc. R. R. Co. v. Jones, 95 U. S. 441, 24 L. Ed. 506; Morenci Southern Ry. Co. v. Monsour, ante, p. 148,185 Pac. 938.
Measured by this standard, what may be said of the conduct of the deceased at the time of his death? He was familiar with the work he was performing, having been engaged in it for two months on and around the converter where, he was killed, and for a time prior thereto on another converter operated in the same way. His employment was recognized as “ a skilled workman’s job,” and he “a good man at his work.” He was not ignorant of the dangers attend
Can it be said that a reasonable and prudent person, under the existing circumstances, would have done as he did? Or would not such a person have done as the evidence shows the deceased had always done before, looked into the face of the switch and aided his hand with his eye to locate the safety handle ? At other times that night, and before when he manipulated the switch, he had placed himself in such a position as to see the switchboard, and he could do this in two ways: By leaving the controller and walking clear around the beam on which the switch was placed, or by standing between the controller-box and the beam, and swinging his body around the beam, until his head was in front of the switch. Whichever method he adopted, he could see the blades, and the wires leading to and from the blades, and also
A mere statement of the facts, it would seem, is sufficient to show that his conduct at the time was inexcusable. The evidence offers no excuse or reason for his undertaking to handle the switch in the manner he did, unless it might be inferred therefrom that he did it to avoid the physical exertion of walking around the beam, or bending his body around it, as above described. The thought that he may have momentarily forgotten, and thrust his hand against the blade, might excuse him from wilful negligence (Diestelhorst v. Industrial Acc. Com., 32 Cal. App. 771, 164 Pac. 44), but not from exercising the care and caution of a reasonably prudent person in handling so deadly a power as electricity. “Forgetfulness” is defined as negligence. It is the omission to think or. do. Nye v. Sochor, 92 Wis. 40, 53 Am. St. Rep. 896, 65 N. W. 854. To act “thoughtlessly” in the midst of a known or obvious danger has been characterized as culpable negligence. Chicago etc. Ry. Co. v. Houston, 95 U. S. 697, 24 L. Ed. 542 (see also, Rose’s U. S. Notes); Wheeler v. Oregon B. & Nav. Co., 16 Idaho, 375, 102 Pac. 347-355.
What was said in a Montana case has direct bearing upon the facts here:
“The plaintiff cannot recover, if he could have avoided the injury by exercising ordinary care and caution. That he may not have understood the danger, or may have temporarily forgotten the risk, ■is of no moment; he was charged with knowledge and understanding of such dangers and risks as he might have comprehended and appreciated by using ordinary care; if he forgot, he was negligent, for he was bound to remember. The defendant was not required to take better care of the plaintiff than the plaintiff was of himself.” Cummings v. Helena & L. S. & R. Co., 26 Mont. 434, 451, 68 Pac. 852, 856.
“He must take ordinary care and learn the dangers which are likely to beset him in the service. He must not go blindly to his work when there is danger. He must inform himself. This is the law everywhere.”
See Wormell v. Maine Central R. Co., 79 Me. 397, 1 Am. St. Rep. 321, 10 Atl. 49-52.
We think it safe to say that no case can be found wherein a recovery has been permitted if the injured party knew, or by the exercise of reasonable care or caution could have known, of the presence of an electric current, and, notwithstanding such knowledge or presumptive knowledge, carelessly and negligently placed his person in contact therewith; but, where a person of intelligence and understanding has been guilty of such conduct, the courts have not hesitated to place the blame where it belongs, and deny a recovery. Capital Gas & Electric Co. v. Davis, 138 Ky. 628, 128 S. W. 1062; Great Western Power Co. v. Pillsbury, 170 Cal. 180, 149 Pac. 35; Billington v. Eastern Wis. Ry. & Light Co., 137 Wis. 416, 119 N. W. 127; Glander v. Milwaukee Electric Light Co., 155 Wis. 381, 144 N. W. 972.
It may be said that negligence, or the absence of negligence, is generally a question of fact to be submitted to a jury. We grant it is always so if the facts in evidence tending to prove or disprove negligence are in conflict, or, the facts not being in conflict, rational minds may draw different conclusions therefrom. Valin v. Milwaukee & N. R. Co., 82 Wis. 1, 33 Am. St. Rep. 17, 51 N. W. 1084; Herbert v. Southern Pacific Co., 121 Cal. 227, 53 Pac. 651; Railroad Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745 (see also, Rose’s U. S. Notes). The very announcement of this rule, however, implies another which is well stated as follows:
*218 “In cases involving questions of negligence, the rule is now settled that, where the facts are undisputed, and the inferences which may be drawn from them are not equivocal and can lead to but one conclusion, the court will adjudge, as matter of law, that there is or is not negligence. ” Shoner v. Penn. Co., 130 Ind. 170, 177, 28 N. E. 616, 618, 29 N. E. 775.
Whether a case falls within the one rule or the other depends on its own particular facts, but when its status is determined the duty of the court is clear. If a plaintiff, in the presentation of his case, lays bare a state of facts that conclusively demonstrates that the accident causing the ip jury or death was due to the negligence of the person injured or killed, and that the accident would not have happened if he had exercised due care and caution, the elements of disputed facts and equivocal inferences are eliminated from the case, and nothing is left to be decided but a pure question of law. That, we think, is this case. The defendant’s evidence did not change or affect the evidence introduced by plaintiff, but was in corroboration of it, and when all the evidence was in, and the motion for an instructed verdict was made, there was no dispute as to how or why the accident happened. This is not the case the Supreme Court had in mind when it said:
“Certain facts we may suppose to be clearly established from which one sensible, impartial man would infer that proper care had not been used, and that negligence existed; another man, equally sensible and equally impartial, would infer that proper care had been used, and' that there was no negligence. It is this class of cases, and those akin to it, that the law commits to the decision of a jury. Twelve men of the average of the community, comprising men of education and men of little education, men of learning and men whose learning consists only in what they have themselves seen and heard, the merchant, the mechanic, .the farmer, the laborer; these sit to*219 getlier, consult, apply their separate experience of the affairs of life to the facts proven, and draw a unanimous conclusion. This average judgment thus given it is the great effort of the law to obtain.” Railroad Co. v. Stout, supra.
The present case falls more nearly within the other extremes instanced by that learned court as follows:
“If a sane man voluntarily throws himself in contact with a passing engine, there being nothing to counteract the effect of this action, it may be ruled as a matter of law that the injury to him resulted from his own fault, and that no action can be sustained by him or his representatives. So if a coach driver intentionally drives within a few inches of a precipice, and an accident happens, negligence may be ruled as a question of law.” Id.
We think it was the clear and undoubted duty of the court to grant the motion for an instructed verdict upon both grounds urged, and since in no view of the evidence is the plaintiff entitled to recover, the cause is remanded, with directions to dismiss complaint.
BAKEE, J., concurs.
Dissenting Opinion
(Dissenting.) — I do not concur in the order vacating the judgment and directing the dismissal of the action. I concur in holding that the record contains no substantial evidence of plaintiff’s loss. In Calumet & Arizona Min. Co. v. Chambers, 20 Ariz. 50, 176 Pac. 839, we pointed out that, in actions based on this employers’ liability law, the plaintiff is required to prove the actual loss sustained proximately caused by the accident. In Arizona Copper Co. v. Burciago, 20 Ariz. 85, 177 Pac. 29, we defined “damages,” as used in paragraph 3158, as having reference to and meaning all loss to the employee which is actually caused by the accident, and the amount of which is susceptible of ascer
A failure to ascertain the amount of such damages is, of course, a failure to show liability. Failure of proof of loss is a failure to ascertain the amount of loss actually suffered by the plaintiff. Hence plaintiff failed to present a right to recover, and defendant’s motion to so direct the jury was good. The court committed reversible error by denying such request and motion. For this error, appellant is entitled to have the judgment vacated, and a new trial awarded it.
I do not agree with Judge ROSS’ finding that this record presents a clear, indisputable case of negligence of the employee killed, as the sole, direct and proximate cause of the employee’s death. Fair minds will agree that Jesse T. Gardner failed to observe a reasonable degree of caution when he attempted to close the switch. Without room for doubt, his careless act in reaching for the switch handle was an efficient, proximate cause of his death; but was such negligent act the sole cause of his death?
The appellee contends that such careless act of the deceased, combined with the negligence of the appellant, directly caused the accident and injury. As a consequence, the appellee contends, the careless act of the deceased amounted, at most, to contributory negligence, and a recovery is therefore authorized. The appellee contends that the failure of the appellant to furnish the employee safe appliance with which to perform the duties assigned the employee is negligence, and appellee points out that the switch in question was not safe, and grounded electric wires, necessitating the use of the switch, enhanced the danger to the employee while actually performing his duties. Of course, an employer is not required
It was for the jury to determine from all the testimony before them whether the employer had, in fact, discharged its duty to Jesse Gardner by furnishing him reasonably safe appliances to perform the duties of his occupation. I can see room for different conclusions to be reached from all the evidence in the record on this question. I am unable to concur in the principal opinion that this is a case wherein the deceased is shown, as a matter of law, to have met his death from his own unquestioned and unquestionable negligence — that his own negligence was the sole cause of the accident and death of Jesse T. Gardner. I am convinced that the evidence fails to show any loss to the father of Jesse T. Gardner, resulting from the death of Jesse. The consideration of all other alleged errors is wholly unnecessary to the disposition of this appeal.
I am, for that reason, of the opinion that the proper order justified is that the judgment be reversed and the cause remanded for a new trial.