23 Utah 437 | Utah | 1901
The complaint, in substance, alleges that the plaintiff on the fifteenth of June, 1898, was an employee
1. The first objection presented by counsel for the appellant is that the court erred in admitting certain testimony relating to a rotten sill in the mine, which was objected to on the ground that the same was immaterial. There are numerous cases which hold that such an objection is too general to be considered by an appellate court. 8 Enc. PI. and Prac. 227. It is not necessary, however, in this case, for us to pass upon that question. It appears from the record that when said objection was made, and upon plaintiff’s attorney stating that he could not present everything at once, the trial judge said: “I think it would be proper, if they can show that the timbers above [where plaintiff was injured] were defective, and that there were not sufficient timbers from below.” He further stated that he would sustain a motion to strike out
2. The second assignment of error discussed by appellant’s counsel is that the trial court erred in refusing the defendant’s request to instruct the jury to return a verdict for the defendant. The ground upon which the appellant predicates the right to such an instruction is that the plaintiff assumed the risk of working in the place where he was injured. The assumed risk of a servant is wholly different from his contributory negligence, although the effect of both is to defeat
3. In connection with this question, appellant assigned as error the refusal of the court to give the following instruction: “If you believe from the evidence that in the place in which the plaintiff was working the conditions were constantly changing by the act of the plaintiff, the rule requiring the defendant to furnish a reasonably safe place for plaintiff to work does not apply.” The doctrine of assumed risk has a material bearing on this assignment, unless the latter covers entirely
4. The appellant also assigns as error the refusal of the court to give the following instruction: “Unless you find from the evidence that the sill referred to by the witness was decayed, and unless you further find that it was at the time of the accident broken or displaced, or in some manner, on account of its defective condition, directly caused or contributed to the accident to the plaintiff, you can not consider in any way the decayed or defective condition of the same. You can not arrive at a verdict by mere speculation or conjecture, but your verdict must be supported by the evidence.” That which directly
5. A witness for the plaintiff was asked the following question: “Now, suppose, in addition to what you have stated, that the sill above was spongy or rotten or decayed, upon which several sets rests above it, would that make it any more necessary for putting in extra timbers as the mining progressed?” Another witness was asked: “What would you say was necessary to be done to make it reasonably safe for a man to work there ?” The witnesses were allowed to answer these questions over defendant’s objections. The principal objection to these questions discussed in defendant’s brief is
Numerous exceptions were taken to the instructions given, but all of them are too general to be considered. The record does not disclose any reversible error.
It is ordered that the judgment of the court below be affirmed, and that the appellant pay the costs.