7 Utah 122 | Utah | 1891
This is an action by the respondent for damages for personal injuries received while in the employ of the appellant as a laborer at a coal mine, owned and operated by defendant, situated at Almy, in the state of Wyo
By the testimony on behalf of the respondent, which
No one of the company’s managers were present on the-night of the accident. The respondent testifies that he could not have taken care of a lamp, and could not have used one very well in his business; that the lights provided were adequate to enable him to select the stone from the coal properly in pursuing his business; that he made no complaint on account of the insufficiency of the lights furnished by the company; that the conditions as to light were the same on the night of the accident as they had been on previous nights. TJnder these circumstances of employment, to do work on all these railway tracks as occasion might require, and with these means-of seeing how to proceed with it, on the occasion of the-accident he was called by Brown to come and help him lift up and hold an end-gate on the railroad car which Brown was placing under the slack chute on the track along-side of the one on which the respondent was working and taking out rock at the time he was called. This chute was so arranged as to permit the railway car to-pass underneath it, and it extended some two feet just over and on the inside of the side of the railway car, leaving from three to four feet on the other side of the box of the car not occupied or taken up or covered by this chute. In response to Brown’s request, the responds ent went to help him lift up the end-gate on this car, and then Brown went to the brake to let the car down, it being on a slight descent, and while holding up this end-gate, which was frosty, and the car was being so. moved, the respondent was caught between the slack chute and the top of the car, his position being so that he was facing in an opposite direction from the chute. He-
When Brown went to attend to the brake he faced away from Quibell, and just as he stopped the end-gate dropped down, and his attention was called to Quibell when he found he was hurt. He heard Quibell cry out, and when he looked round he could see him as his body lay there in the car, and he could also see the chute. There was light enough there to see the whole situation. Quibell held up the gate of the car with his back to the chute, and the movement of the car carried him near to it, and at length caught him between the chute and the •top of the car. There was no lack of light to proceed about the work. On the track, parallel and next to it, he was, at the time he was called, selecting rock from the coal by means of light furnished in the usual course cf his business. On having his attention called to the accident just as he was stopping, the car, Brown looked around at the call of Quibell, and saw where and how he lay in the car; could see the chute, and, from the lamp either that he had himself in his hand or sitting down near him at the time he was attending the brake, or from the other light furnished, he could take in the whole situation. Plaintiff was 43 years old at the time of the accident, and was then receiving $2.25 per day The result of the accident was the breaking of the left arm above the wrist and below the elbow, which left the arm useless. He had not worked under this particular chute before that day, but had worked above and around them for five days. No one had informed him of the condition of this particular chute. The evidence also discloses that the respondent, when injured, declined to accept the services of a surgeon tendered him by the defendant for the purpose of dressing his wounds, but put himself under the treatment of a man who was a
The appellant assigns the following error as grounds for a new trial, among others, to-wit: Insufficiency of the evidence to justify the verdict, and that it is against the law in this case, in this, to-wit: The errors of law occurring at the trial, and excepted to by the defendant, among others is: The court erred in overruling the defendant's motion for a judgment of nonsuit, made at the close of the plaintiff’s testimony.
The main question presented in this case is whether there was any evidence of negligence or want of proper care on the' part of the defendant in failing to provide materials, machinery, suitable light, and other means by which the plaintiff could perform the work for which he was employed, safe and adequate for his use, and whether the same was kept in order and fit for use, so as not to unnecessarily expose him to danger. Negligence, as I understand it, consists in the want of that reasonable
Included in the risks assumed by the plaintiff in this case were those originating from the negligent acts and omission of his companions, Brown, a fellow-servant in the employ of the company, with whom he was working under the joint directions of both, and without the supervision of a master; and while it was the duty of the company to use reasonable care in all respects, and to furnish its employés suitable and proper light for them to pursue the work assigned to them without incurring danger or injury in coming in contact with objects to be met with in their usual and necessary avocations, and, without which light, danger would be imminent, still, if such sufficient light was not furnished, and injury in consequence occurred to the plaintiff when he had the same or equal means of knowledge with the defendant of such absence of proper light, and did not protest against the negligence now complained of, but continued in the
Where, therefore, from the whole evidence on which the case rests, it appears that the plaintiff was wanting in prudence and care, or that he directly or proximately contributed to cause the injury he received, or that by the use of ordinary care and prudence he could have avoided the injury, the court, it is held, may rightfully instruct the jury, as a matter of law, that the plaintiff could not recover, even though the defendant was guilty of negligence. And while the court should not invade the province of the jury, and pass upon the weight of the evidence, yet, where the jury have made a clear and unquestionable mistake of fact, or where the passion or prejudice of the jury have so clearly controlled their mind as to find a verdict where there is no evidence upon which to base it, the appellate court has the right, and it is its duty, to rectify thp wrong done, and to set aside the judgment upon which such erroneous judgment is based, and grant a new trial. Where there is no conflict of evidence whatever upon the questions of fact presented, and such evidence falls short of making a prima facie case for the plaintiff, it is then the duty of the trial
While there may be some difficulties in the way of this rule in the same cases, yet the courts are held and bound judicially to know that absence of due care is not due care, and that no care is not due or reasonable care; that the absence of proof of negligence does not prove negligence. Jurors should act upon the question of diligence, negligence, and reasonable care when there is evidence in the case to prove it. If there be no evidence, there is nothing before them upon which to find negligence, diligence or care.
The question of the relevancy of evidence, and its tendency to prove negligence, diligence or want of it, and whether there be any evidence, is not a question for the jury, but a question for the court, and it must be decided by the court, and not by the jury. This being the
It has been held that if at the time the plaintiff closed bis proofs there was no evidence upon the material point upon which the plaintiff had the burden of proof, or if it affirmatively appeared, by his own showing, that he had no cause of action, upon the undisputed testimony introduced by him, the defendant was entitled at that .stage of the case to a direction from the court to the jury to find a verdict for the defendant. Equally so, under the same circumstances, was the defendant entitled to such direction after all the evidence was introduced. It is the duty of the judge, when asked to do so, before sending the case to the jury, as a preliminary question of law, to decide whether there is any evidence upon which the jury could properly find a verdict for the party on whom the onus of proof lies; and, if there is not, he ought to withdraw it from the jury. Railroad Co. v. Miller, 25 Mich. 274; Conely v. McDonald, 40 Mich. 158; Carver v. Plank Road Co., 61 Mich. 584, 28 N. W. Rep. 721.
On looking into the evidence, it will be seen that the •chute and screens were properly and permanently constructed and entirely suitable for the use for which they were built; that the chute extended about two feet over the side of the car, and was for the purpose of allowing the coal to drop into the car from above, and could in no way interfere with the safety of the plaintiff had he used reasonable care, and looked to see where he was going. Instead of doing so, he turned his back to the chute and the lamp, and was carried onto and under the chute by the moving car being drawn by his companion, which he knew was moving in the direction of the chute
The plaintiff's employment was in, around, and about-these chutes; he had been there five days, and long enough to see the surroundings. He could have seen the chute if he had looked, but he did not look. He knew, or is chargeable with knowledge, of the situation of the tracks, the condition of the trestle, the existence of the chutes and screens, and the use they were put to,, but on this occasion he forgot to look; he did not think of the chute at that time; did not look in that direction, but was facing away from it, and also from his companion* He was simply absent minded, and did not use his eyes, his recollection or his reason. He was not using that reasonable care which would be exercised by a reasonable