150 P. 953 | Utah | 1915
" The plaintiff, a minor, sued the defendant to recover damages for personal injuries which he alleged he sustained while in the employ of the defendant through the latter’s negligence. The plaintiff, after alleging that he was employed as á “derrick man” and was engaged in hoisting stones with a derrick on a certain day for a certain building then being constructed by the defendant as contractor, alleged that said defendant “negligently failed to provide safe and suitable appliances for stopping, locking or controlling the said derrick in the operation of which plaintiff was employed, and negligently failed to provide a safe and suitable dog or clutch to lock the machinery of said derrick, and to hold the loads hoisted by the same in position after hoisting, but, instead, provided a certain improperly and defectively shaped clutch or dog which was insecurely fastened on said derrick, and which dog or clutch was insufficient and unsuitable for the
The principal error assigned is that the court erred in denying appellant’s motion for nonsuit, which was based on substantially the following grounds: (1) That plaintiff failed to prove any negligence respecting the matters alleged in his complaint, or any of them; (2) that, if there was
“As to the manner in which the accident occurred, there was a decided conflict in the testimony.”
It is now well settled, in this jurisdiction at least, that where the evidence is in conflict, it ordinarily is the exclusive province of the jury to determine whether they will accept plaintiff’s or defendant’s version of the transaction in question, and in such event, if, after examining the evidence, we
The evidence produced by the plaintiff, briefly stated, is to the effect that at the time of the accident he was twenty years of age; that he had been working for the defendant for about two months, and for approximately three weeks immediately preceding the accident was employed
This brings us to the exceptions to the court’s charge to the jury. The appellant excepted to the italicized portions of the following instructions:
“The duty of a master toward a servant in his employ is to exercise reasonable and ordinary care and skill to provide safe machinery and appliances for carrying on the business in which he employs the servant, and in keeping such machinery and appliances in safe condition for
And further:
“An employee is required to observe and avoid all known perils, or conditions such as would, upon ordinarily careful observation, convince an employee of ordinary intelligence and prudence, of danger, even though they may arise from a defect in the machinery or appliance which he is using; but he is not bound to search for defects, or to make a critical inspection of the appliances which are provided for his use. These are the duties of the employer, who is required not only to furnish reasonable, safe, and suitable tools and machinery, but to exercise such a continuing supervision over them by such reasonable, careful and skillful inspection- and repairs as will keep the appliances which the employee is required to use in
Counsel now urge that the portions- of the charge we have italicized are outside the issues, and hence were improper. In that connection it is contended that no issue was raised by the pleadings that appellant was required either to inspect the machinery on the derrick, or that there was a failure to do so. It is true that the respondent in his complaint did not allege that appellant had failed in that regard, nor that such failure, if it'in fact existed, in any way contributed to the accident and consequent injury complained of. During the trial, however, and especially on appellant’s cross-examination, much was said about those matters, and the court, for that reason,' no doubt, was induced to charge the jury as it did upon that subject. As a general rule, the court should confine the instructions to the jury to the issues presented by the pleadings, and to depart from that rule may not only be erroneous, but it' may, under certain circumstances, constitute prejudicial error. Whether the latter is the ease, however, depends upon the evidence produced by the parties, as well as upon the particular circumstances of each case. We think that, inasmuch as both parties went into those matters on the trial of the case, and especially since the appellant did so very fully, that the matters excepted to did not and could not have misled the jury to appellant’s prejudice. While the statement made by the court that it is the duty of the master “to exercise a continuing supervision over them,’’ that is, over the tools, appliances and machinery furnished by the master, when applied to the facts of this case, is somewhat strong, yet, in view of the whole charge, when considered in the light of the evidence, we are constrained to hold that the jury were not misled thereby. We think what the court meant by the term “continuing supervision” was not that the master was compelled to maintain a watch or supervision constantly, that is, at each moment or even hour of time, but, by keeping in view all that was said by the court, what was meant was that a reasonable supervision, that is, an examination or inspection, at reasonable intervals of time only was required. If such a construction is permissible, and we think
Nor was appellant prejudiced by the court’s refusal to charge as requested. Really no request was refused which covered any feature or phase of the case not sufficiently
For the reasons stated, the judgment is affirmed, with costs to respondent.