134 P. 747 | Utah | 1913
Lead Opinion
Plaintiff brought this action to recover damages for personal injuries which he alleges were caused' through the negligence of the defendant, Corey Bros. Construction Company, a corporation organized and existing under the laws of this state, with principal office in Ogden, Utah. A trial was had to a jury, which resulted in a verdict in favor of plaintiff for $1600. From the judgment rendered' on the verdict, defendant appeals.
The facts, over which there seems to be no controversy, are as follows: During the month of December, 1907, respondent was in the employ of appellant, which was engaged in constructing a railroad bed near the town of Gameill, State of Montana. On the 27th day of that month appel
The alleged negligence of appellant, upon which respond--ent relies for a recovery, is stated in his complaint as follows:
“That the defendant then and there carelessly, negligently, and wrongfully ordered the plaintiff in his work to take sand alongside said sticks of dynamite and in close proximity of said dangerous explosives, and the defendant carelessly, negligently, and wrongfully permitted the plaintiff to engage in his work and go past the premises at said place where said dangerous explosives were being handled by the defendant, without giving him any notice or warning of the dangers thereof. . . . And plaintiff never knew or had any means of knowing that said dynamite as used and handled by defendant company was hazardous, or that defendant company would handle and manage the same so as to be hazardous and dangerous. . . . That the defendant knew, or by the exercise of ordinary care should have known, of all of said dangers, and well knew that plaintiff had no knowledge and no means of knowing of the existence of said dangers.”
As we have pointed out, the respondent, at the time of the accident, was a minor nineteen years of age; that he had had no experience in handling and using dynamite.
The court, among other things, instructed the jury:
“There is no dispute as to what was the method employed by the defendant in thawing out dynamite at the time and place where the plaintiff was injured, and there is no test-i-*124 mony contradicting tbe testimony that tbe plaintiff was not notified of tbe danger in working in close proximity to tbe place where said dynamite was being tbawed out, if it was dangerous, so that, if you find by a 'preponderance of the ■evidence that at the time and place where the plaintiff was injured, the method of thawing out dynamite as used by the ■defendant was dangerous, and if you further find that the plaintiff was ordered by the foreman of the work being done by the defendant at that time and place to perform the duty of carrying sand or dirt in such' close proximity to the place where such dynamite was being thawed out that his Ufe and limb were endangered thereby, then the court ■charges you that the defendant was guilty of negligence, and if you find by tbe same amount of evidence — tbat is, by a preponderance of tbe evidence — -tbat sucb negligence proximately caused tbe injuries wbicb plaintiff received, in other words, if you find by a preponderance of tbe evidence tbat but for sucb negligence tbe plaintiff would not have been injured, then tbe court charges you tbat tbe plaintiff is entitled to recover in this action, unless you find tbat be was guilty of contributory negligence, as will be hereinafter explained to you.”
Appellant excepted to tbat part of tbe instruction which we have italicized and assigns tbe giving of it as error.
Tbe court charged tbe jury on tbe question of contributory negligence as follows:
4 “Tbe defendant alleges that tbe plaintiff was guilty of •contributory negligence, and tbe court charges you that by ■‘contributory negligence’ is meant a failure on tbe part of tbe plaintiff to exercise such care as a person of ordinary prudence would have exercised under tbe circumstances. If tbe plaintiff failed to exercise such care,*126 and such, failure proximately contributed to plaintiff’s injuries, then he cannot recover in this action.
“The court charges you that if you find from the evidence that at the time and place of his employment by the defendant company the plaintiff had no knowledge of danger in the* use of dynamite, or its dangerous and explosive character,, and did not appreciate the dangerous nature of dynamite,, nor the danger of being in close proximity to where it was-being thawed out, then the court charges you that the plaintiff was not guilty of contributory negligence, unless you. should find that the danger was so apparent that a person of ordinary prudence, by the exercise of ordinary care, must have known and appreciated the danger incident to his employment at the place where he was injured.”
The jury were given to understand by these instructions, that should they find from the evidence that respondent had' knowledge of and appreciated the danger of working in the' immediate vicinity of the place where the dynamite was-being thawed, or if they found that “the danger was so apparent that a person of ordinary prudence, by the exercise' of ordinary care, must have known and appreciated the danger,” he could not recover. The court also instructed the jury as follows: “You are not to consider any one clause of these instructions as an independent proposition, but you must consider all of the instructions together.”
We do not wish to be understood as holding that in all! cases a faulty or incorrect instruction given, on one phase-of the case is cured by the giving of a correct instruction on. the same point in another part of the charge which deals with: some other phase of the case. What we do say is that, under-the facts and circumstances of this case, the giving of the-instruction complained of was not prejudicial error. Moreover, as we have suggested, the jury were in effect told that before they could return a verdict for respondent they must find from the evidence that he did not know of and appreciate the danger of working in the immediate vicinity of th® place where the dynamite was being thawed.
' It will be seen from tbe foregoing copious quotations from tbe record and tbe printed brief of counsel for appellant that tbe following facts are in effect conceded:
(1) That tbe use of dynamite in blasting is inherently dangerous, and, as stated by counsel for appellant in bis brief, “no one knows at wbat time or at wbat place, while •dynamite is being bandied, that it may not explode.” Of this we think tbe court may take judicial notice.
(2) That tbe thawing of tbe dynamite before tbe fire on tbe occasion referred to made of tbe immediate vicinity of tbe dynamite a very dangerous and hazardous place in which to work.
(3) That respondent was not advised or warned by appellant, or by any one else, of tbe danger in working near or in tbe immediate vicinity of tbe place where tbe dynamite was being thawed, and that respondent, at tbe time be was injured, bad bad no experience whatever in handling or using dynamite, and that be did not know or appreciate tbe danger of working in close proximity of tbe fire at which tbe dynamite was being thawed.
Under these circumstances we think it was tbe duty of appellant to inform respondent of tbe danger of working in tbe
“If there are any dangers, either latent or patent, of which the master has knowledge, either- actual or presumed, which the employee, either from his youth, inexperience, want of skill, or other causes, does not, or is presumed not to, understand or comprehend, they must he made known to him by the master. . . . The-obligation is not discharged by informing the servant generally that the service in which he is engaged is dangerous; and, more-specially is this so when the servant is a person who neither by experience nor by education has, or would be likely to have, any knowledge of the perils of the business, either latent or patent. In such case the servant should be informed, not only that the-service is dangerous, but of the perils of the particular place, and the particular or peculiar dangers that attend the service, if' any. ... So the negligence on the part of the master may consist solely in his failure of duty to instruct as to the perils, known to him, or which he ought to know.”
. This rule, which, we think is a wholesome one, was applied and followed by this court in the case of Pence v. Mining Co., 27 Utah, 378, 75 Pac. 934.
We are therefore of the opinion that the court did not err-in giving the instruction complained of, and which we have set forth.
Other errors are assigned, but we do not deem them of. sufficient importance to warrant us in discussing them.
The judgment is affirmed. Costs to respondent.
Dissenting Opinion
I dissent. I think the instruction not only erroneous but harmful. The theory of plaintiff’s case, as alleged in his complaint and upon which he went to the jury, is not that the defendant was negligent in selecting an improper or dangerous place to thaw the dynamite, or that the manner of thaYidng it was unusual, improper, or negligent, but that the defendant carelessly, negligently, and wrongfully ordered and permitted the plaintiff to ’work in close proximity “of a dangerous explosive,” without giving him notice or warning of the danger, he, as alleged, having been without knowledge or means of knowledge of the hazard and danger to which he was exposed, which, as is also alleged, the defendant knew or ought to have known. The court, as matter of law, charged the jury that the manner of thawing the dynamite, under all the circumstances disclosed, was not negligent. With respect to the defendant’s alleged negligence, the court instructed the jury (paragraph 2) as set forth in the prevailing opinion, and also as follows: “(10) The court charges you that from the allegations of the complaint, and from the evidence introduced, the thawing of dynamite by placing it around a fire in a circle is in itself not negligence, and that the defendant was not negligent in permitting its servants to thaw dynamite in such a way, but the court charges you that if you find by a preponderance of the evidence that the method of thawing out dynamite, as used by the defendant at the time and place where the plaintiff was injured, though not negligent, was dangerous, and if you further find that the plaintiff was ordered by the foreman of the work being done by the defendant at that time and place to perform the duty of carrying sand or dirt in such close proximity to the place where such dynamite was being thawed out that his life and limb were endangered thereby, then the court charges you that the defendant was guilty of negligence.” Complaint is made of both of these instructions.
It needs no argument to show that the charge is wrong. Was it prejudicial? It is said to be harmless because the
But let it be conceded that the evidence without conflict shows that the defendant did not notify or warn the plaintiff of the danger, as was assumed by the trial court in paragraph 2 of the charge. The liability of a master in failing to warn and notify his servant of danger is not-determinable alone from the fact that the master did not notify or warn him. There are other equally important factors to be considered —among them, the character of the danger, whether it was open, obvious, and manifest or otherwise; the attending circumstances and conditions; the knowledge and experience of the servant himself; and the defendant’s knowledge or notice, either- actual or constructive, of the servant’s lack of knowledge or appreciation or comprehension of the danger. For these reasons the question of negligence predicated on the master’s failure to warn or instruct the servant of danger is peculiarly one of fact. It of course is admitted
*134 “It is no answer to say that the appellee, suing a railroad, would, have had a verdict anyhow; the appellant had the right to he mulcted under the forms of law.”
The negative charge, referred to in the prevailing opinion, that if the plaintiff was without knowledge of the danger and did not appreciate it, then he was not guilty of contributory negligence but emphasizes, instead of cures, the error complained of. In the first place it, too, is erroneous, in that it makes the want of contributory negligence solely dependent upon one thing: If the plaintiff was without such knowledge and did not appreciate the danger, then, says the court, was he, as matter of law, not guilty of contributory negligence, no matter how much he may have lacked in due care in all other particulars. But in the event the jury found he had such knowledge and 'did appreciate the danger, then what? The charge is silent as to such an hypothesis. The jury were left to dispose of it, and were given the liberty to find the plaintiff guilty or not guilty of negligence, as they on the. evidence, aided by argument of counsel, might think justice and meet in the premises and agreeably with the prayer of the complaint. In the next place this, charge gave the jury to understand that plaintiff’s knowledge and appreciation of the danger, or the want of it, had but to do with the question of. contributory negligence and the determination of it, but had npthing whatever to-do with the question of the defendant’s alleged negligence in failing to warn or notify the plaintiff of the danger, and heu.ce but emphasized the error complained of and considered. Certainly it will not be claimed that one error against an aggrieved party may be cured by another of equal or greater injurious effect.
And lastly, the conclusion deduced that because of the charge of contributory negligence the jury, before they could find for the plaintiff, were required to find that he was without knowledge of the’ danger and did not appreciate it is, in my judgment, not justified. For, as already pointed out, that charge directed the jury that if the plaintiff was without such knowledge and did not appreciate the
Concurrence Opinion
I concur. While the court in the instruction complained', of omitted one element, yet the jury upon that element could, properly have found but one way, namely, that the respondent neither knew nor appreciated the danger to which he-was exposed. As to that element the court might well have directed the jury how to find the fact as a matter of law. If,, therefore, the court could properly have done so, it cannot amount to reversible error because the court omitted that element from the charge and submitted only the other elements.