10 Utah 470 | Utah | 1894
In this action the plaintiff brought suit against the Horn Silver Mining & Smelting Company, a corporation, defendant, to recover damages for an injury sustained by the plaintiff while in the employ of the defendant corporation. The grounds on which the plaintiff relied for a recovery, as stated in his complaint, were that the injuries were due to the negligence and incompetency of the defendant company’s engineer in charge, at the time of the accident, of the defendant’s hoisting apparatus, and that the defendant company was guilty of negligence in employing said engineer in the first instance, he being, as •alleged in the complaint, incompetent, unskillful, negligent, and careless, and that defendant company, was also .guilty of negligence in retaining such engineer in its employment, well knowing he was unfit and incompetent for such employment. The defendant answered the complaint, specifically denying all its material allegations, and alleging contributory negligence on the part of the plaintiff. A trial was had in the lower court, which resulted in a verdict and judgment in favor of the plaintiff for $10,000. In due time the defendant submitted a motion for a new ■trial, which was denied, and this appeal is' prosecuted from .said judgment and the order denying said motion.
In support of the appeal, numerous alleged errors ■occurring at the trial, and excepted to by the defendant, .are assigned, as well as the insufficiency of the evidence to justify the verdict. We do not deem it necessary to consider the alleged errors - occurring at the trial, for we
It is useless to multiply authorities in support of a rule so well established as this, and an inspection of the record discloses that the plaintiff utterly failed to meet the requirements of this rule. There is no evidence tending to show that any of the officers or agents of the defendant company had actual notice or knowledge of any act of carelessness, or of any act tending to show incompeteney,
The plaintiff testified that prior to the accident in question he knew that this engineer was careless and reckless, and he further testified that he never made any complaint thereof to any agent or officer of the defendant company, or in fact to any one, but continued to expose himself to the dangers arising from such alleged recklessness and carelessness. This alone precludes recovery by the plaintiff. Wood, Mast. & Serv. § 432; Davis v. Railroad Co., 20 Mich. 105; Hatt v. Ney, 144 Mass. 186; 10 N. E. 807. The court below so instructed the jury. In the light of the evidence it is manifest that the jury disregarded the instructions; otherwise, the verdict must have been for the defendant, on the plaintiff’s own showing. Judgment and order denying the motion for a new trial reversed, and the cause remanded for a new trial.