85 P. 357 | Utah | 1906
Lead Opinion
(after stating the facts).
The decisive question presented is whether the plaintiff has shown any right of recovery. The appellant contends that, having aided in the construction of the temporary contrivance to unload the battery houses, the injured had actual knowledge of the means employed in the service, and, as the dangers connected therewith were open and obvious^ and as he
TJpon careful examination of the evidence disclosed by the record, we are of the opinion that the appellant’s contention is well founded. The unloading of the battery houses was in the regular line of service which the plaintiff was employed to perform. His duties related generally to all kinds of the material that might be in, or shipped into; the yard. His employer was a common carrier engaged in the business of receiving and transporting all kinds of goods, implements, and material, and, in the absence of evidence showing the contrary, we must assume that the respondent was a man of average understanding and knowledge of things about him, and capable of appreciating the obvious dangers connected with the duties he undertook to discharge. Át the time of the accident, he had been in that service for three months, knew what its nature was, and must have known that there was more or less risk of injury incident to the service. Such hazards, as are merely incidental to the business, the servant and the master are supposed to have taken into’ consideration in the negotiations respecting the employment. The fact that this was the first occasion on which battery houses had been received into the company’s yard is immaterial, because the very nature of the service suggests that the employees must at times handle materials and appliances which are different from those usually received and handled. Doubtless, there are occasions, like the one in this instance, when, in order to load or unload such material, the construction of improvised means becomes necessary to perform the service. In such cases, the employees, who voluntarily assist in providing such.means; for performing the service more conveniently, and continue, without objection, to perform it according to
In Dunn v. Railroad, 28 Utah 478, 80 Pac. 311, a gang of section laborers constructed a temporary platform with ties and plank for the purpose of loading a car with ties.
“If, under such facts and circumstances as are disclosed by this record, an employer would be liable to an employee in damages, it would seem difficult to conceive of a case of accidental injury where the employer would not be liable. That this is one of those unfortunate accidents, in which there is no responsibility on the part of the employer, we entertain no doubt. It is clearly a case of an assumed risk incident to the employment. We are aware of the general rule that, where a master employs a servant, he must exercise ordinary care to furnish the servant a reasonably safe place in which to perform the service, and a failure to do so will render the master liable for any injury to the servant resulting from such failure; but in this case we can perceive no violation of the rule that can avail the respondent, who, we have a right to assume, in the absence of evidence to the contrary, was a man of average understanding and knowledge of things about him. We cannot say from the proof that the place was not reasonably safe, but, if it was not — if it was dangerous — the danger was open and obvious, and the employee could easily observe it. Whatever hazard was connected with the loading of the ties was equally open and obvious to the employee sis to the employer, if not more so; and, if there was anything unsafe about the platform, the exercise of ordinary care would have revealed it to the employee. He having voluntarily engaged in such service, concurring in the use of the contrivance, observing its construction and temporary character, and, as a man of ordinary understanding and knowledge, aware of the dangers incident to the employment, and having, of his own volition, undertaken to perform the service in that way, must be held to have assumed the ordinary risks of injury incident to that service, including the risk of the injury in question, and cannot now be heard to complain.”
And, in that case, upon the question of reasonably safe place to perform the service, Mr. Justice McCarty, observed:
“While it is a duty the master owes to his servant to furnish him with a reasonably safe place in which to perform his work, the master is not bound to anticipate and guard against every conceivable kind of accident or misfortune that might occur. The appellant in this*370 case was only required to use that degree of care and diligence in the construction of the runway and platform that a reasonably cautious and prudent man, understanding the dangers and hazards of the employment, would use under the same or like circumstances. The master cannot he expected, nor is he required, to anticipate and guard against every conceivable kind of accident and misfortune that might happen to the servant in the performance of the work; yet, if the respondent can be permitted to recover in this case, it would be difficult to fconceive of a set of circumstances under which a master would not he liable to his servant for injuries sustained because of an accident to the servant while in the performance of the work required of him. The platform and runway were simple devices, temporary in character, and plainly observable, and to me it is incomprehensible how it was possible for respondent to go up this runway and onto the platform every few minutes for a space of two hours, and not become aware of the nature and character of their construction.” (Cooley on Torts, 634-636; Roth v. Eccles, 28 Utah 456, 79 Pac. 918; Christienson v. R. G. W. Ry. Co., 27 Utah 132, 74 Pac. 876, 101 Am. St. Rep. 945; Higginns v. Southern Pac. Co., 26 Utah 164, 72 Pac. 690; Sullivan v. India M. Co., 113 Mass. 396.)
Entertaining the conviction that the plaintiff has shown no right of recovery, we do not deem it important to discuss or pass upon any other question presented.
The judgment must be reversed, with costs, and the ease remanded for further proceedings in accordance with law» It is so ordered.
Concurrence Opinion
I am- of the opinion that the respondent assumed the risk, and therefore concur'in the judgment of reversal.