117 P. 462 | Utah | 1911
Plaintiff brought this action to recover damages from tbe defendant for tbe death of her husband, Ira A. Fowler, which resulted from injuries received February 24, 1909, through tbe falling of a steel truss which be and other employees of defendant were attempting to put in plafee at defendant’s cement plant near Devil’s Slide, Morgan County, Utah.
It is alleged, among other things in the complaint “that, in order to raise said steel trusses or beams by means of the said derrick and wire cable, it was necessary to securely attach the end of said wire cable to prevent the same from breaking or slipping away; and it was the duly of defendant company at the time herein mentioned to firmly and
The principal grounds upon which defendant relies for a reversal of the judgment are: (1) “'Insufficiency of the evidence to justify the submission to the jury of the question of negligence on the part of the defendant; (2) that the contributory negligence of plaintiffs intestate was fully shown by the evidence, and the verdict should have been directed for defendant.”
We will first determine whether the evidence was sufficient to justify the submission of'the case to the jury on the question of whether or not the defendant was negligent. The record shows that the end of the cable was fastened by one of the defendant’s employees, a Mr. Wagner, who was a skilled and competent structural iron worker, in the following manner: lie passed the cable through a hole in the spreader at the outer end of the boom from which the cable passed out between two angle irons horizontally fastened to the timbers which formed the boom, and, as a means of holding the cable and sustaining the weight of the truss suspended
We are clearly of the opinion that the testimony of Snyder alone was sufficient to warrant the court in submitting to the jury the question as to whether the slipping of the cable was due to negligence of the defendant in
In the case of Schoepper v. Hancock Chemical Co., 113 Mich. 582, 71 N. W. 1081, the court said:
“Defendant’s counsel contends that the cause of the explosion is a matter of mere conjecture, and it is said by counsel that it is not enough for plaintiff to prove circumstances consistent with her theory, but that these circumstances, and each of them, must preclude any other rational conclusion. This we taire to be but another way of stating the proposition that the proof must exclude all reasonable doubt. It is hardly necessary to say that no such rule obtains in civil cases. It is true that, where an injury occurs that cannot be accounted for and where the occasion of it rests wholly in conjecture, the case may fall for want of proof (citing Robinson v. Charles Wright & Co., 94 Mich. 283, 53 N. W. 938; McNamara v. Railway Co., 95 Mich. 545, 55 N. W. 440). But such cases are rare, and that rule should never be so extended as to result in a failure, or in denying an injured party, of a right of action, where there is room for balancing the probabilities, and for drawing reasonable inferences better supported upon one side than the other.”
“Now the company insists that the proof fails to show that the pulley was defective, hut, if it does, it fails to show the specific defect which caused it to hurst; and, if it does this, still it does not show that Whitford (deceased) was struck by one of the flying pieces, for no one saw him hit; that for aught that appears in the record he might have been hurt by stumbling and falling into the pulley while approaching it, or by slipping and falling between the belt and pulley while oiling the idler above, in either of which events his skull might have been fractured on one side and his scalp bruised on the other. . . . Doubtless a jury ought not tc be permitted to speculate in the sense of guess between causes when no reasonable explanation of the injury can be found in the testimony (citing Patton v. Texas Pac. Ry. Co., 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361; Duntley v. Inman & Co., 42 Ore. 334, 70 Pac. 529, 59 L. R. A. 785; I. C. R. R. Co. v. Cathey, 70 Miss. 332, 12 South. 253). But, in the absence of direct testimony, the simple suggestion of theories by the defense‘does not reduce the jury to mere speculation and disqualify it from determining the cause of the injury complained of. The theories suggested may be forced and fanciful, finding no reasonable foundation in the facts proved. They may be explanations which do not explain, which the common sense of the jury, when applied to the testimony, would instantly reject.”
So in tbis case tbe theory advanced by defendant that tbe falling of tbe truss might have been due to some latent defect in tbe clamp, by which tbe end of tbe cable was fastened is not supported by any evidence in tbe case, but is mere conjecture only.
We now come to the- assignment of error involving the question of whether Fowler, the deceased, under the evidence when considered in the light most favorable to the plaintiff, was as a matter of law guilty of contributory negligence. the evidence bearing upon tbis phase of the case discloses about the following state of facts:
Regarding the situation and as to what was said and done at the time of and immediately preceding the accident, Snyder, one of defendant’s witnesses, testified in part as follows: “The tag line we had was too short, and Roberts had hold of it, and the trass would swing over him once in a while. I told Fowler to take a piece of line over, and tell Roberts to bend it on so he could stay out from under that thing. . . . He took the rope and handed it to Roberts, and Roberts took a step< over on the trass further to tie or bend on the line, and Fowler'followed him around, stepping over the trass that was lying on the ground and crossed over on the further side of it. He must have been partially under the suspended trass which dropped.” Snyder further testified that he had “cautioned the men regularly about going under the heavy weights that were being hoisted,” and had “told Fowler before about it.” William Tame, an employee of defendant who was assisting in putting the trass in place, testified: “I could see George (Roberts) from where I was, and I heard Snyder tell Ira Fowler to get that line and take it over to George, and saw him do it. The trass fell and struck him on the head. I saw him as he fell. He and Roberts were so close together that they could touch one another.” He further testified that “the rule of iron workers is to keep from under all bodies being hoisted.” Roberts was called as a witness, and testified in part as follows : “I was standing under the boom like, and pulling back toward the mast, and helped to move the car along that the truss was banging to. The rope was too short, and it was necessary to attach something more and lengthen it. Ira got the rope and came out with it to where I was standing. In order to tie the line on, we had to go out- where my line came down, so I could reach it in order to tie it. Ira came out to assist me in tying the rope, and while he was there assisting me the trass fell and I jumped out of the way. . . . I barely escaped.”
The general rule is that where, as in this case, a servant is injured while performing some act in obedience to the orders of his master, he is not chargeable with
“A servant acting under the commands or threats of his master does not assume the risk incident to the act commanded, unless the danger incurred is -fully appreciated and is such that no person of ordinary prudence would consent to encounter it; and the mere fact that the servant knows there is some danger will not defeat his right to recover if in obeying he has acted with ordinary care under the circumstances.”
In 1 Labatt, section 439, tbe author says:
“If a danger is not so absolute and imminent that injury must almost necessarily result from obedience to an order, and the servant obeys, the master will not afterwards be allowed to defend himself on the ground that the servant ought not to have obeyed the order.” And again: “It does not follow that because disobedience to the order would be justifiable the servant was guilty of negligence in obeying it.”
(Shearman & Kedfield, Neg. [5th Ed.], section 186; 20 Am. & Eng. Ency. L. [2d Ed.], 147; Harrison v. Railway Co., 7 Utah, 523, 27 Pac. 728.) Tested by the rule as declared by these authorities, and many others that could be cited, tye are clearly of the opinion that the facts and circumstances of this case, as disclosed by the record, would not justify a court in directing a verdict for the defendant. Under the circumstances all that the defendant could properly demand was that the question of contributory negligence be submitted to the jury under proper instructions from the court. And, the court having done this, the defendant is not in a position to complain.
The judgment is affirmed, with costs to respondent.