125 P. 407 | Utah | 1912
Lead Opinion
(after stating the facts as above).
The important and contested questions of fact that were submitted to the jury were: (1) Did appellant on the evening of the accident notify respondent’s shift boss of the extra risks to which he claimed he was exposed because of the dangerous condition of the roof or top of the stope at the point where he was at work when injured, and did the shift boss, in pursuance of such notice', promise appellant that he would have timbers installed in the stope on the sills referred to in the foregoing statement of facts ? (2) Did the ore and material that caused the injury complained of break loose and fall from a point in the roof of the stope over the sills mentioned, or did it come from a point in the roof where timbers resting on the sills would not have prevented .it from falling on appellant?
“To constitute a promise to remedy dangerous conditions, no formal words of promise are necessary. Any acts or expressions by which the employer or his vice principal gives the employee to understand that the cause of the danger, if any, will be removed, constitute a sufficient promise, and, if the shift boss, Bray, made any statements to the plaintiff upon whch the plaintiff had reasonable grounds to rely that the stope would be timbered, the plaintiff did not assume the risk of any danger due to lack of timbering, unless the danger was so immediate, manifest, and imminent that no man of ordinary prudence would have remained there, notwithstanding the promise.”
This instruction, so far as it goes, contains a correct statement of the law applicable to the facts in this case. Appellant requested the court to charge the jury that, “where the master promises that a dangerous condition will be remedied, the servant does not assume the risk of an injury caused bv such dangerous condition within such period of time after the promise as would be reasonably allowed for the performance, unless the place is so manifestly and immediately dangerous that a man of ordinary prudence would have refused to work there, notwithstanding the promise. The effect of a promise by the master to remedy a dangerous condition is to relieve the servant from the assumption of the risk of the particular danger to which the promise relates, although the servant be fully aware of the same; it fastens the responsibility for any injury resulting from such dangerous condition upon the master, for a reasonable length of time during which the servant continues work in expectation that the promise will be fulfilled.” The court refused to give 'this instruction, but instructed the jury that a promise made by Bray, resepondent’s shift boss, “if any is proven by the evidence to have the stope timbered, would be the promise of the defendant company.” And in instruction No. 12 the court said:
“The effect of such promise by the master is to relieve the servant from the assumption of the risk of the particular danger to which the promise relates, if the servant in good*149 faith relies on tbe promise, although the servant be aware of the danger, and, after allowing to the master a reasonable time to remedy the danger, makes the master responsible for the injury resulting from such dangerous condition during such further reasonable time that- the servant continued to work in expectation that the master will remedy the defect.”(Italics ours.) The giving of this instruction and the refusal of the court to charge the jury as requested' by appellant is assigned as error.
The rule as declared by practically all of the authorities is-that, when the master in response to a complaint made by a servant of the unsafe and dangerous condition of the place-in which the servant is at work promises to eliminate the particular danger complained of by putting the premises in a reasonably safe condition, and the servant, relying on the-promise, continues at work for a reasonable time thereafter,, the master, and not the servant, assumes the risks of the danger complained of during such reasonable time, unless the place is so' obviously dangerous that a reasonably prudent man would decline to work there, notwithstanding the promise of the master. And the weight of authority seems to be that it is not necessary that the servant, at the time of complaining of the extra hazards and dangers to which he is exposed because of the dangerous condition of the place in which-he is at work, should threaten to abandon the work, nor that he should say in so many words that-'he apprehends danger to himself. The authorities seem, to hold' that it is sufficient if it appears that the servant is induced to remain at work by reason of the promise to eliminate the danger, and that he had no intention of waiving his objection to the dangerous condition of which he complained. 20 A. & E. Ency. L. (2d Ed.) 127.
In 1 Shearman & Kedfield on Negligence, section 215, it is said:
“There is no longer any doubt that, where a master has expressly promised to repair a defect, the servant does not assume-the risk of an injury caused thereby within such a period of time after the promise as would be reasonably allowed for its performance, or indeed within any period which would not preclude all-reasonable expectation that the promise might be kept.”
“Nor, indeed, is any express promise or assurance from the master necessary. It is sufficient if the servant may reasonably infer that the matter will be attended to.”
In 26 Cyc. 1209, tbe rule is tersely and, as we think, correctly stated' as follows:
“Where the master or some one acting in his place promises to remedy the defect complained of, the servant, by continuing in his employment for a reasonable time after such promise, does not assume the risk of injury from the defect unless the danger was so patent that no person of ordinary prudence would have continued to work.”
And on page 1211 of tbe same volume it is said:
“To be sufficient, a promise by the master to remedy defects or remove danger must be definite and certain, and must be made with a view to the servant’s safety, and as an inducement to him to continue work. The promise may, however, be implied as well as express, general as well as individual.”
In 2 Cooley on Torts (3d Ed.), p. 1157, tbe author says:
“If the master promised to repair the defect or remove the danger, he thereby assumes the risk arising therefrom, and the servant may continue for a reasonable time at the master’s risk. . . . After a reasonable time has elapsed, or, if a definite time is fixed, then after that has expired, the risk is again upon the servant. Though the risk is on the master, the servant must exercise a reasonable degree of care in view of the danger to which he is exposed. If the danger is obvious and such that a reasonably prudent man would not incur it, the rule does not apply and the servant continues at his own risk.”
To tbe same effect are tbe following decisions: Rothenberger v. N. W. Con. Milling Co., 57 Minn. 461, 59 N. W. 531; Illinois Steel Co. v. Mann, 100 Ill. App. 367; A., T. & S. F. R. Co. v. Sadler, 38 Kan. 130, 16 Pac. 46, 5 Am. St. Rep. 729; Yerkes v. Northern Pacific Ry. Co., 112 Wis. 184, 88. N. W. 33, 88 Am. St. Rep. 961; Pieart v. Chicago, etc., Ry. Co., 82 Iowa, 148, 47 N. W. 1017; Alton Lime & Cement Co. v. Calvey, 47 Ill. App. 343; Hough v. Railway
The case of Foster v. Chicago, etc., R. Co., supra, is also-published in 127 Iowa, 84, 102 N. W. 422, 4 Ann. Cas. 150, and we invite attention to' an elaborate and instructive note-appended to the decision in said last-named' volume in which the annotater cites numerous cases in which this question was involved. From the decisions there cited, the annotater concludes that “the reasoning supporting this rule is that, when the master has knowledge of the defect and promises to repair the same, he impliedly requests the servant to- continue at work, and impliedly assumes responsibility for any accident that may result from the defect during the reasonable time within which repairs should be made.”
In this case, as we have pointed out, the evidence introduced in behalf of appellant tended to show that the top or roof of the stope directly over the sills was “drummy” and appeared to be in an unsafe condition, and that it might break loose and fall at any moment; that appellant notified' respondent’s shift boss of the dangerous condition of the stope at that point, and stated to- him that it needed timbering; that the shift boss promised to have the place timbered; that the material which fell and caused the injury complained of came from a point in the roof of the stope directly over the sills, and that, if timbers had been installed in the stope on the sills as promised, the accident would not have occurred. Under the authorities cited, we are clearly of the opinion that appellant’s request, when considered in connection with other portions- of the court’s charge, contains a correct statement of the law applicable to the issues of fact in- this case and should have been given.
Counsel for respondent vigorously -contend that the court did, in effect, charge the jury as requested by appellant. We-
“If the alleged conversation testified to by plaintiff occurred at about eleven thirty o’clock in the evening, then your verdict must be for the defendant. In other words, if you should believe that the conversation took place between plaintiff and the witness Bray referred to by plaintiff, but that it took place just a few minutes before the accident to plaintiff, then your verdict must be for the defendant.”
This instruction, the giving of which is assigned as error, we think clearly demonstrates that the court, by giving instruction No. 12, supra, intended to do just what the phraseology therein used purports, namely, tell the jury that appellant continued to assume the risk of the particular danger complained of for a reasonable time after the alleged promise was made.
From what we have said it necessarily follows that the giving of instruction No. 23 was in and of itself prejudicial error. Under the facts of this case, the promise of Bray (the
The judgment is reversed and the cause remanded to the district court, with directions to grant a, new tral. Appellant to recover costs.
Concurrence Opinion
(concurring).'
I concur. I am not prepared to say, however, that the court was required to charge the jury in the exact language or form requested. The request may have been too broad in stating that the promise by the master “fastens the responsibility for any injury resulting from such dangerous condition upon the master,” etc. This is not necessarily the result under all circumstances. The effect of such a promise merely shifts the risk of injury from the servant to the master, and prevents the master from successfully interposing the defense that the servant has assumed the risk. Whether the master is ultimately liable for an injury if the servant continues to. perform the particular service in reliance upon the master’s promise may, in a particular case, still depend upon whether the master was in fact negligent, whether the: servant was free from contributory negligence, and whether the injury, if any was suffered, was the proximate cause of the master’s or of the servant’s negligence. The law with respect to- when the risk shifts from the servant to' the master was, however, correctly outlined in the request, and in my judgment the court erred in not charging the jury in that regard in substance as requested.
