97 P. 28 | Utah | 1908
Lead Opinion
Tbe plaintiff brought this action to recover damages for personal injuries alleged to have been sustained by bim by tbe negligence of the defendant. It was alleged in tbe' complaint: That tbe defendant was engaged in tbe business of smelting ores, and in connection with its smelter it maintained and operated electric motors and cars upon and over a trestle and platform erected in one of its buildings ; that tbe plaintiff, a boy sixteen years of age, was in its employ and was required to couple and uncouple cars and open and close switches; that it was tbe duty of tbe defendant to inclose tbe platform by a suitable fence, to keep it free from rock and slag, to light tbe premises, to furnish tbe plaintiff suitable switch bars and appliances, and to cause the motor, upon which tbe plaintiff was required to ride, to come to a full stop before be alighted therefrom to open and close switches; that these duties bad not been performed; and that by reason thereof the plaintiff, while engaged in the prosecution of his work, and in alighting from a motor and running along the track to open a switch in advance of the engine, stepped upon broken rock or slag and was thrown from the platform and trestle a distance of about thirty feet and was injured. The answqr contained a general denial and pleas of contributory negligence, fellow service, and assumption of risk. The case was tried to the court and a jury. A verdict was rendered, and a judgment entered for plaintiff, from which the defendant has appealed.
At the conclusion of the evidence the defendant requested the court to direct a verdict in its favor. In passing on the motion the court ruled that the case should be submitted to the jury only as to the issue of the defendant’s alleged negligence in failing to have the premises sufficiently lighted, but
The evidence shows that it was- the duty of the plaintiff to couple and uncouple cars, open and close switches, load and unload cars. The cars were propelled by an electric motor. When the plaintiff was required to do switching, his position was at a place on the front part of the motor,, which was about two feet from the floor of the platform. In the ordinary discharge of his duties he was required to alight from the motor while it was in motion and to run in advance of it to the switch required to be opened or closed, and that such was the usual way of doing the work. The line of road over which the motor cars were operated extended a short distance from a briquetting machine, and upon a trestle and platform constructed in a building about 250 feet in length. The platform of the trestle was planked, and was six and one-half feet wide and about twenty-five-feet above the ground floor. The west side of the platform extended to a blind board wall. The east side was open, except for a guard rail which was about three feet above the floor of the platform. There was more or less smoke-in the building caused by the smelting operations. Lights were -placed about the trestle and along the track short distances apart. The motors were also1 equipped with headlights consisting of thirty-two candle power lamps throwing a light 150 feet along the track. There was a light at the south entrance of the building about twelve feet above the platform of the trestle. Seventy-seven feet from the entrance Avas an are light hanging underneath the west rail of the track. Farther along there Avere two other arc lights also hanging underneath the track. There was a light
There is no evidence showing the size or character of the rock or slag upon which the plaintiff stepped, of the quantity of it along the track, except as made to appear by the photograph. Looking at the exhibit, it appears that small particles of broken rock and slag were scattered here and there along the track. The photograph shows the track and platform substantially free from obstructions and particles of rock and slag which would ordinarily interfere with one’s walking or running along the track. We recognize the difficulty there is in accurately judging the size and character of the rock and slag from the exhibit, but that is all the evidence there is upon the question. Aside from that, the evidence merely shows that the plaintiff slipped by stepping on a piece of rock or slag, without any description as to its size or character, or the quantity along the track, except as testified to by him that there was a good deal along the track and more at the time of the accident than at other times. Of course, one walking or running along the track may slip and fall by stepping on a mere pebble or a small piece of broken rock or slag, but no one would contend that the presence of such a thing rendered the premises ordinarily dangerous or unsafe. The defendant was not obliged to guard against mere accidents. It was not required to keep the track and platform absolutely
This brings us to tbe question of tbe alleged negligence of tbe defendant in failing to have the premises sufficiently lighted. It was incumbent on tbe plaintiff to show that tbe defendant owed him a duty to light tbe premises, that tbe duty was not performed, and that such dereliction of duty was tbe proximate cause of plaintiff’s injury. It may be assumed that from tbe character of tbe work carried on by tbe defendant, and tbe duties exacted of tbe plaintiff at tbe place in question, tbe trier of facts may say that there were such attending dangers as to require tbe defendant to properly light tbe premises to render them reasonably safe, and to enable tbe plaintiff to do his work with reasonable safety. Had tbe plaintiff shown that be came in contact with some object or thing which tended to obstruct tbe free use of tbe platform, and which ordinarily could have been avoided by him bad tbe premises been properly lighted, be might have been entitled to have tbe issue as to tbe defendant’s negligence in this respect submitted to tbe jury; but be has wholly failed to show that bis injury was occasioned by coming in contact with such an object. Had be shown
We are further of the opinion that the evidence was insufficient to show negligence on the part of the defendant in failing to have the premises sufficiently lighted, because of the want of evidence that the defendant had either actual or constructive knowledge of such abnormal condition of the premises. No complaint is made that the defendant was guilty of negligence in not furnishing or providing proper or a sufficient number of lights. Its duty, of course, was a continuing one, and it was not only required to furnish sufficient lights in. the first instance, but it was also required to exercise ordinary care to maintain the lights in repair and in reasonably good condition. The only evidence to charge the defendant with negligence in this respect was that at the time of the accident three or four lights along tire track were out, and that the lamps on the motor did not burn, by reason of which the premises were insufficiently lighted. The other lights about the building were burning. What caused the lights to be out, or how long they had been out, is not shown; nor is it shown that the defendant had knowledge of such fact. There being no evidence that the defendant had actual' knowledge that the lights were out, or were defective or out of repair, and there also
We are also of the opinion that a verdict ought, to have been directed for the defendant on the ground of plaintiff’s assumption of risk. He stated that he was familiar with the condition of the premises and the work for which he was employed. He knew the lamps on the motor were not burning, and that three or four of the lights along the track were out. He knew the light was out about the place where he jumped from the motor and ran along the track. He knew it was dark, and that he could not distinctly see the
Tbe fact that tbe lights were out and tbe premises not sufficiently lighted were well known to plaintiff. He had full knowledge of tbe abnormal condition of tbe premises. Tbe further question is: Hid he know and appreciate tbe danger to- which be was exposed in consequence of such conditions? To say that be did not is to say that be did not appreciate tbe ordinary consequences of running along tbe track in tbe dark knowing tbe condition of tbe premises, as testified to by him. True, tbe plaintiff was but sixteen years of age, and bis comprehension and appreciation of danger is not to be measured by tbe standard of an adult, but by one of bis age, capacity, and experience. It, however, ought to be conceded that- there are consequences of some acts, and that there are some dangers, which an ordinarily intelligent sixteen-year-old boy would readily comprehend and appreciate. Tbe plaintiff certainly appreciated tbe difference between light and darkness, and that the likelihood of slipping or stumbling while running in tbe dark was greater than if tbe premises bad been, properly lighted. If, again, it shall be assumed that tbe rock and slag with which tbe plaintiff came in contact were of such character as likely to cause one to stumble or slip, and that tbe defendant was chargeable with a breach of duty in failing to guard against such a danger by having tbe premises properly lighted, tbe consequences of running along tbe track in tbe dark with knowledge of tbe presence of tbe rock and slag is something of such a common and general experience that an ordinary sixteen year old boy would quite as readily comprehend as an adult. We do not gee how reasonable minds could differ on such a question, or arrive at different conclusions. It, however, is further suggested that-, though tbe plaintiff knew it
We are therefore of the opinion that on both grounds urged by the appellant the case ought to have been taken from the jury-
The judgment of the court below is therefore reversed, and the cause remanded for a new trial; costs to appellant.
Concurrence Opinion
(concurring).
I concur in the reasoning of my Brethren and in the conclusions reached by them wherein they hold that the evidence was insufficient to support a finding by the jury that defend
