151 P. 979 | Utah | 1915
Mrs. Rosetta Dunn, for herself as widow, and also as guardian ad litem for Bella, Harry, and William Dunn, the minor children of Mrs. Dunn, and one William Dunn, deceased, brought this action against the defendant to recover damages for the death of her husband, William Dunn, which, she alleged, was caused through the negligence of the defendant corporation. The defendant owned and operated an electrically equipped railroad between Salt Lake City and Ogden, and the deceased, a machinist, was employed by the defendant at one of its sub-stations to operate and control the machinery and appliances which were used by the defendant in operating its trains by electricity. While engaged in that work, the deceased, on the 25th day of September, 1914, was killed by coming in contact with, or by approaching too close to, a copper wire which was charged with 44,000 volts of electric current. In plaintiff’s complaint it is, in substance, alleged that the “transformers of said station were connected with the high-tension wires in an improper, unwork-manlike, and unusual manner.” The defects are then particularly described. It was further alleged that the defendant had negligently and carelessly installed and arranged certain wires and switches so that they were deceptive and dangerous to its employees, stating the particulars concerning the alleged negligence and defects. It was also alleged that the defendant was negligent in failing to “acquaint its employees with the intricacies and peculiarities of the installation and wiring in said substation.” The manner and cause of death of the deceased is fully set forth, together with his-age, health, and ability to earn money. The defendant, in its answer, denied all negligence, pleaded contributory negligence, assumpton of risk, and that the accident was caused by a fellow servant. At the close of plaintiff’s evidence the defendant interposed a motion for a non-suit, which was granted by the court, and a judgment dismissing the action was accordingly entered, from which plaintiff appeals.
“The respects in which the complaint alleges negligence upon which there -is evidence are the two allegations: First, of the deceptive and misleading switch; second, the permitting to run this wire, that is, permitting this wire to remain a distance of only four feet and six inches above the casing of these transformers. That is, the only negligence upon which there is any proof. The negligence of permitting the transformers to be charged with electricity and be alive when the party had been informed they were dead, there is no evidence to support that. The evidence shoAvs the transformers were dead, had been disconnected, and the switches had been thrown, which diverted the current entirely from the transformers. The facts in this ease are to be considered with reference to the relation the deceased bore to this plant. Without any hesitation, I would say the case would go to the jury to determine whether there Avas negligence if this had been some — if the accident had happened to a person who was rightfully there, and had been sent to clean the top of these transformers, without having any further knoAvledge than would be implied merely from that service, but there was the operator of that plant, person in charge, and who had been in charge of the plant from four to seven months, if he commenced in June, about four months, and if he had been there longer, whatever the time was; but he was in charge of this plant, he wa,s the person who manipulated
There was therefore no question in the mind of the trial court, as there is none in ours, that there was at least sufficient proof of negligence upon the question of the equipment and installation of the substation to take the case to the jury. The trial court, however, took the position that, in view of the duties of the deceased and of his experience and familiarity with the equipment and installation of the substation, as to him there was not sufficient proof of negligence, and, further, that he, as a matter of law, had assumed the risk. Under ordinary circumstances there might be much force to the court’s deduction that the deceased had assumed the risk, but in view of the peculiar situation he was placed in at the time of the accident the court’s deductions are clearly fallacious. The facts in that regard, briefly stated, are as follows: The defendant employed two men, called “operators,” at the substation in question, one on the night shift, and the other on the day shift. The deceased at the time in question was employed on the day shift. On the morning in question, when he went on duty, he met the night- operator, who was leaving the station. It is claimed by plaintiff that the night operator had had trouble during the night with the transformers and switches in the substation, and that he had informed the deceased of the trouble, and had told him that certain wires in the substation were “dead,” or imparted information to that effect to the deceased. To show the fact, plaintiff’s counsel, among others, propounded to the night operator the following questions: “What report did you make to him (the deceased) in regard to the condition of the plant?” that is, with respect to the condition of the electrical appliances in the substation. And further: “This morning, when you changed shifts, what did you say to him? What report did you make to him?” — to the deceased. Much was said in connection with the foregoing about it being the custom of the station to report to the on-coming opertor, and something was also said concerning a written report. All this may, however, be disregarded. The plaintiff had the
“Where the question is whether a party has acted prudently, wisely, or in good faith, the information on which he acted, whether true or false is original and material evidence, and not hearsay.”
See, also, Smith v. Whittier, 95 Cal. 279, 80 Pac. 529.
Nor does it come within the rule governing principal and agent. The controlling question, so far as the conduct of the deceased was concerned, was not whether the switches and wires were actually dead, but what, if any, information was imparted to him regarding that subject and what he did, or rather what, under all the circumstances, was he justified in believing with respect thereto. Of course, if there had been no proof of negligence on the part of the defendant, the proffered evidence would have been immaterial, and hence its exclusion would have been harmless. But, as we have seen, the plaintiff produced at least some substantial evidence upon the question of - the defendant’s negligence, and hence the question of whether the deceased was guilty of contributory negligence and whether he knew and appreciated the danger of injury and had assumed the risk' became very material, and should have been submitted to the jury under proper instructions. Nor is it material whether the evidence upon the question of, negligence was strong or weak. By interposing a motion for a .nonsuit the defendant not only admitted every fact directly proved, but likewise admitted every inference deducible from any facts that were proved. In view that we are required to reverse the judgment, we have refrained from discussing the evidence or the effect thereof, ■except where it became absolutely necessary to do so.
For the reasons stated, the judgment is reversed, and the cause is remanded to the District Court of Salt Lake County, with directions to grant a new trial; appellant to recover the costs of filing her appeal and printing her brief. The costs for filing the appeal shall, however, be paid to the clerk of this court for the use of the state, as provided by Comp. Laws 1907, section 1019.