75 P. 722 | Utah | 1904
This is an action to recover for personal injuries alleged to have been caused by the negligence of the defendant. The answer denies the negligence alleged in the complaint, and alleges contributory negligence upon the part of the plaintiff. A verdict and judgment were rendered in favor of the plaintiff.
The defendant made a motion for a nonsuit, and, when the testimony was closed, requested the court to instruct the jury that, as a matter of law, the plaintiff was not entitled to recover. The denial of both the motion and request is assigned as error. The ground of the motion and request is that the evidence fails to show any negligence on the part of the defendant, and shows contributory negligence on the part of the plaintiff.
The plaintiff, at the time of the injury, on the third day of October, 1901, was 32 years old, and was, and
Lawrence Abeglen, an employee, whose standing duty was to assist plaintiff to make repairs, testified: “That there was room enough for him to get under by tight squeezing. If the gearing was out of order, he could fix it under there. Couldn’t tighten screws or bolts there very handy. Could have done it with my assistance. I was sent there for that purpose. Didn’t ask me.” That it was a common thing for him to get on the belt when the mill was stopped — no danger then. It was done in a conspicuous way, so everybody around the mill could see him when it was stopped.” This witness further testified, in substance, that he was present, and heard Shearman, the superintendent, say that he was going to shut down the mill for half an hour, and 'at the same time he told the plaintiff “to look over the mill, and directed me to help him.” The evidence
Appellant’s counsel contend that the decisions of this court in the cases of Fritz v. Electric Light Co., 18 Utah 493, 56 Pac. 90, and Cook v. Mining Co., 12 Utah 51, 41 Pac. 557, sustain their contention. In one of these cases the danger to which the servant was exposed was naturally incident to the uses of electrical appliances, and in the other case was inherent in the
The judgment is affirmed, with costs.