Hone v. Mammoth Mining Co.
75 P. 381
Utah
1904
Check Treatment
BASKIN, C. J.,

after stating the foregoing facts, delivered the opinion of the court.

1

*176 2

*175Contributory negligence, as defined in 7 Am. & Eng. Ency. of Law, p. 371, “is the want of ordinary care upon the part of a person injured by the actionable negligence of another, combining and concurring with that negligence, and contributing to the injury as a proximate cause thereof, without which the injury would not have occurred.” This is an accurate definition of contributory negligence. See Faulkner v. Mammoth Mining Co., 23 Utah 437-441, 66 Pac. 799. There is a want of ordinary care on the part of the plaintiff only when, under all of the circumstances and surroundings of the case, he has done, or omitted to do, something which “an ordinarily careful and prudent person,” in a like situation as the plaintiff, would not *176have done, or omitted to do, and which was the efficient and proximate canse of plaintiff’s injury. “The test of contributory negligence or want of due care is not always found in the failure to exercise the best judgment or the wisest precaution, but some allowances may be made for the influences which ordinarily govern human action, and what would under some circumstances be a want of reasonable care might not be such under others.” Lent v. N. Y. C. & H. R. R. Co., 120 N. Y. 467, 473, 24 N. E. 653. The want of ordinary care, however, must be determined from the facts disclosed in each particular case and is generally a question of fact for the jury, and not one of law.

This court held, in Holland v. Oregon Short Line R. Co., 26 Utah 209, 212, 72 Pac. 940, that “contributory negligence is a question of law only when the testimony is not conflicting, and is such as permits no reasonable difference of opinion as to its effect; but, whenever there is any doubt as to the facts, it is the province of the jury to determine the question, or, whenever there may reasonably be a difference of opinion as to the inference and conclusions from the facts, it is likewise a question for the jury. It belongs to the jury, not only to weigh the evidence and find upon the questions of fact, but to draw conclusions as well, alike from disputed and undisputed facts. ’ ’

This court, in the case of Linden v. Anchor Mining Co., 20 Utah 134, 148, 58 Pac. 355, 358, held, in the opinion delivered by Mr. Justice McCARTY, that: “It is well settled that, where there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law but of fact, and to be settled by a jury; and this whether the uncertainty arises from a conflict in the testimony, or, because of the facts being undisputed, fair-minded men will honestly draw different conclusions from them.”

In the case of Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485, Mr. Justice Lamar, in the opinion, said: ‘ ‘ The terms * ordinary care, ’ *177‘reasonable prudence,’ and such, like terms, as applied to the conduct and affairs of men, have a relative significance, and can not be arbitrarily defined. What may be deemed ordinary care in one case may under different surroundings and circumstances be gross negligence. The policy of the law has relegated the determination of such question to the jury, under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular case, and then say whether the conduct of the parties in that case was such as would be expected of reasonable, prudent men under a similar state of affairs. When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered as one of law for the court. ... As the question of negligence on the part of the defendant was one of fact for the jury to determine, under all the circumstances of the case, and under proper instructions from the court, so also the question of whether there was negligence in the deceased which was the proximate cause of the injury was likewise a question of fact for the jury to determine under like rules.”

3 As it appears that the plaintiff was an inexperienced miner, and evidence was introduced tending to. show that from the deportment and statements of the experienced miners present he thought the place at which he was injured was not dangerous, that “practical miners acknowledged it to be a fact that in a large stope a cave comes in piecemeal, ’ ’ that ordinarily a stope properly timbered with square sets will not cave, that it was not expected by those who were present that the stope would cave before morning or until the next day, and that they were waiting there for “the boss to come and see where he would send them to *178work,” and that the plaintiff did not know the height of the stope, we can not say that an ordinarily careful and prudent person, under the circumstances, would not, as the plaintiff did, have stayed at the place of the accident. Therefore the question of contributory negligence was properly submitted to the jury.

4 5 The second, and only other, objection urged by appellant’s counsel, is that “the evidence affirmatively shows that by his acts and conduct plaintiff knowingly and voluntarily assumed the risk of the accident and injury.” The servant assumes the natural and ordinary risks incident to his employment, but the negligence of the master is not among the risks so assumed. Whenever the master’s negligence is the proximate cause of injury to the servant, the master is liable. Much evidence was introduced in the case at bar tending to prove the alleged negligence of the defendant, and that such negligence was the proximate cause of plaintiff’s injury; therefore the issues of both assumed risk and contributory pegligence were properly submits ted to the jury. The general verdict rendered in favoi of the plaintiff is conclusive, both as to the question of contributory negligence and assumed risk.

The judgment is affirmed, with costs.

BARTCH and McCARTY, JJ., concur.