177 P. 218 | Utah | 1918
Lead Opinion
Plaintiff, William Stam, an infant, by his _ guardian, Evert Neuteboom, brought this action for the recovery of damages resulting from injuries received while in the employ of defendant at its packing plant in Ogden City, Utah. The defendant was engaged in the business of slaughtering animals and packing, dressing, and manufacturing meats, sausages, etc., derived wholly or in part from sheep, hogs, beeves, or other animals. The plaintiff’s particular employment was in connection with a certain machine operated for cleaning guts of animals to be used as casings in the manufacturing of sausages. These guts will hereafter be called “casings,” and the machine so operated the “casings cleaning machine.” The machine consisted of a large roller attached to a flat table so
The plaintiff, at the time of the accident, was in the act of feeding the machine or placing the casings where they would be drawn between the rollers, when by some means his right hand was caught and drawn into the machine. His hand was cut and lacerated to such an extent as to require amputation, and later on a second amputation became necessary at a point about halfway between the wrist and elbow, by means of which plaintiff became and was permanently and seriously injured.
The specific acts of negligence alleged in the complaint and relied on were, in substance: (1) That the location of the electric switch above referred to was so far away from the machine as to render the person working thereat unable to conveniently shut off the current and stop the machine; (2) that in the exercise of ordinary care a safety plate should have been used so that the person working at said machine could not get his hand caught therein; (3) that defendant should have provided a safety device that could have been operated by plaintiff’s foot so-that the machine could have been quickly and instantly stopped; (4) that plaintiff was only sixteen years of age, was inexperienced in the operation of the machine, and was without knowledge as to the danger incident thereto, and in the exercise of ordinary care the defendant should have instructed the plaintiff and warned him concerning the danger, but failed to do so, and negligently ordered him to work faster at said machine, and on the day
The defendant, answering the complaint, admits the plaintiff was in its employ, and that he was injured as alleged, bnt denies that defendant was negligent in any of the particulars mentioned. Defendant affirmatively alleges that plaintiff was guilty of contributory negligence, and that he assumed the risk.
The case was tried to a jury and a verdict rendered for plaintiff. Judgment was duly entered, motion for a new trial overruled, and defendant appeals.
Appellant assigns as error the refusal of the court to direct a verdict for defendant at its request, the giving of certain instructions to the jury, the refusal to instruct as requested by defendant, the making of certain remarks by the court, and the order of the court overruling the motion for a new trial.
At the close of plaintiff’s testimony, defendant rested, and moved for a directed verdict. Several grounds were specifically stated, but in substance and effect they may be embodied in two propositions, to-wit: (1) That the negligence of the defendant was not proven; and (2) that the plaintiff by virtue of his experience, knowledge, and understanding of conditions and appreciation of danger, assumed the risk of whatever injury he sustained.
The court overruled the motion and submitted the case to the jury.
It becomes necessary at this point to review the testimony for the purpose of determining whether or not there was any substantial evidence upon which to base a verdict.
There was substantial evidence tending to show that the plaintiff was only sixteen years of age at the time of the injury; that he was foreign born, but was of average intelligence for a boy of that age; that he had been in the employ of defendant for about three months at the time of the accident which resulted in the injuries complained of; that during all that time he had been engaged as a feeder of the machine heretofore described; that he understood the operation of the machine and the danger incident thereto when it was in motion; that he had taught other employees how to
By the assignment of error under consideration we are asked to find that there was no substantial evidence of negligence to submit to the jury, and also to find that plaintiff, under all the circumstances, must be presumed to have assumed the risk of the accident which resulted in his injury.
time of the accident, he would, as matter of law, be held to have assumed the risk, and in such case many of the authorities cited by appellant would be in point, notably the following which we have carefully examined: E. S. Higgins Carpet Co. v. O’Keefe, 79 Fed. 900, 25 C. C. A. 220; Hickey v. Taaffe, 105 N. Y. 26, 12 N. E. 286; Ash v. Verlenden et al., 154 Pa. 246, 26 Atl. 374; Brown v. Adams & Sons Co., Ltd., 120 La. 319, 44 South. 1005; Berlin v. Mershon & Co., 132 Mich. 183, 93 N. W. 248; Loftus v. Dehail, 133 Cal. 214, 65 Pac. 379; Bohn Mfg. Co. v. Erickson, 55 Fed. 943, 5 C. C. A. 341; Fones v. Phillips, 39 Ark. 17, 43 Am. Rep. 264; Hess v. Escanaba Woodenware Co., 146 Mich. 566, 109 N. W. 1058; Corning Steel Co. v. Pohlplatz, 29 Ind. App. 250, 64 N. E. 476; Wiggins v. E. Z. Waist Co., 83 Vt. 365, 76 Atl. 36, 25 L. R. A. (N. S.) 1220, 21 Ann. Cas. 1092; Lowcock v. Franklin Paper Co., 169 Mass. 313, 47 N. E. 1000; Carl Beghold v. Auto Body Co., 149 Mich. 14, 112 N. W. 691, 14 L. R. A. (N. S.) 609; East & West R. Co. v. Sims, 80 Ga. 807, 6 S. E. 595; Buckley v. Gutta-Percha & Rubber Mfg. Co., 113 N. Y. 540, 21 N. E. 717. Numerous other cases are cited by appellant to the same effect, but those enumerated above are sufficient for our purpose.
In Labatt, Master & Servant (2d Ed.) section 1363 (section 439, 1st Ed.), the effect of a specific order by a master to a servant during the course of his work is discussed at considerable length and illustrates the view wo take of this question. The section is somewhat lengthy and we merely call attention to it without setting it out in this opinion.
In the next succeeding section, at page 3939, the author says:
' ‘ The juridical theory is that the order, having a natural tendency to throw the servant off: h'is guard, may properly be considered to excuse him from the exercise of the same degree of care as would have been incumbent on him if the ease had not involved this factor. ”
Again, at page 3942, same section, the author says:
"Another circumstance which is frequently emphasized is the fact that when a servant is suddenly called upon to execute a piece of work in a particular manner, under the eye of his employer, or employer’s representative, a careful observation of the conditions is generally quite impracticable if the direction is to be carried out with that promptitude which is expected from the subordinate.”
In Tuckett v. Steam & Hand Laundry, 30 Utah, at page 292, 84 Pac. at page 507 (4 L. R. A. [N. S.] 990, 116 Am. St. Rep. 832), this court, in discussing the effect of such an order given to a servant while engaged at his work, says:
"The effect of such a direct and positive order from a master to a servant to perform an act in the course of his employment, which is dangerous, or to perform such an act in a dangerous manner, is twofold. It may constitute an additional act of negligence on the part of the master. If the order of the master constitutes an act of negligence, and if the servant obeys it, and by reason of such obedience is injured, he can count upon such an act of negligence when he brings an action to recover for his injury. In order, however, to recover, he must show that the obeying of the order was the proximate cause of the injury.”
The same doctrine is recognized and applied in Fowler v. Cement Co., 39 Utah, at pages 373, 374, 117 Pac. at page 465,
“The general rule is that where, as in this case, a servant is injured while performing some act in obedience to the orders of his master, • he is not chargeable with contributory negligence, unless the act commanded involves danger so obvious and imminent that no reasonably prudent person in his situation and with his knowledge of the danger would undertake it.”
The learned justice in the same connection cites as authority for the proposition 26 Cyc. 1221, which reads as follows:
“A servant acting under the commands or threats of his master does not assume the risk incident to the act commanded unless the danger incurred is fully appreciated and is such that no person of ordinary prudence would consent to encounter it; and the mere fact that the servant knows there is some danger will not defeat his right to recover if in obeying he has acted with ordinary care under the circumstances.”
The excerpt we have taken from the opinion in the Fowler Case is quoted with approval by Mr. Chief Justice Frick, speaking for the court in Toone v. O’Neil Construction Co., 40 Utah, at page 282, 121 Pac. 10, a case involving the same question.
We do not understand that the doctrine of those cases is controverted by appellant, and therefore deem it unnecessary to refer to other authorities.
Appellant complains of certain remarks made by the trial court when instructing the jury.
The court, after stating the substance of the complaint generally, to and including the first three specific charges of negligence, then remarked orally, “I call your attention particularly to this gentlemen, ’ ’ and then proceeded to state the substance of the fourth ground of negligence relied on in the complaint, which relates to the minority of the plaintiff, failure to instruct or warn him, and the order requiring him to work faster.
The transcript shows that, when the court concluded his instructions to the jury, appellant’s counsel called the court’s attention to the fact that the remarks above referred to were not in the written instructions and requested that the,,same be inserted therein so that the defendant might have an opportunity for something, which is not made clear. The remarks were inserted as requested and became a part of the written instructions.
The statute requires that instructions be in writing. The remarks referred to were made orally at first which, technically, was improper; but, as stated, they were inserted in the written instructions at defendant’s request in order, presumably, to afford it an opportunity to avail itself of an objection to the impropriety.
It is due to the court to state that its reason for making the remarks at all was the fact that it intended to withdraw from the jury’s consideration all the charges of negligence made in the complaint except the ones following the remarks objected to. The court did thereafter during his instructions to the jury withdraw from their consideration every charge of negligence except the ones to which it called particular attention.
This assignment is without merit.
Appellant’s counsel have not called our attention to any error in this instruction, and we confess our inability to discover the ground of their objection.
Objection is also made to instruction No. 9, especially the part italicized in the following quotation. The whole instruction reads as follows:
“I further charge you, gentlemen of the jury, that the plaintiff, by entering and continuing in the employ of the de
“In determining whether or not the plaintiff knew, understood, and appreciated, or should have known, understood, and appreciated, the risks, hazards, and dangers, if any, to ivhich he was exposed while in the performance of his duties, you should take into consideration all the evidence bearing in any manner on that question, including any evidence as to his knowledge concerning the machine in question and the danger of operating the same, and also all evidence concerning his age, capacity, and experience, the kind of machinery with which the work was performed, the manner of the performance of such work, and what, if any, instruction or warning he had received concerning such matters, and also any directions, if any, were given, as to the speed at which the work ivas to be performed by him.”
Appellant’s counsel characterizes this instruction as especially vicious. In taking -their exception, however, they did not specify any .particular word, phrase, or sentence as objectionable, but at the time intimated that the ground of objection was that it singled out a certain class of evidence as against all the evidence submitted to the jury upon the point which it attempted to cover.
Other instructions were objected to and exceptions noted; but, as the grounds of the exceptions appear to be wholly without merit, we deem it unnecessary to consider them in detail.
We find no error in the record.
Before concluding, we call attention to a motion made by respondent to dismiss the appeal.
In view of the conclusion at which we have arrived concerning the merits of the case, and in view of the fact that the point raised is not jurisdictional, we deem it unnecessary to determine the question involved. It would serve no useful purpose in the present case. The question presented’is an important -one, but there is no emergency calling for its immediate determination. We will therefore defer our judgment until there is a more opportune occasion.
For the reasons stated, the judgment of the trial court is affirmed at appellant’s costs.
Rehearing
Appellant moves for a rehearing on two grounds: (1) That the foreman was not present when the accident happened; and (2) that the plaintiff was not in his proper place.
“Q. At any rate, you ran around to the place where Mr. Clark was and picked up the casing and put it in the machine, didn’t you? A. No, sir; Pete Tesch (meaning the foreman) you know, told me — the boy was there the one day and he told me to work — -to work a little faster, and I understood to put in casings; just the time I put in there and turn around this wheel and took off my hand.
“Q. He put the first one.in there? A. Yes, sir; and I told him to do little faster. Pete told me to work faster. I says, ‘Wait a minute, I show you,’ and I put in there, and just when I went in there he jerk.”
This testimony not only shows that plaintiff was injured while trying to carry out the order' of the foreman and while trying to show his coemployee how to do the work in carrying out the order, but it also demonstrates what we said before concerning the disjointed, chopped-up nature of the testimony. Furthermore, plaintiff understood, and had a right to understand, that the foreman meant that he (plaintiff) should “put in the casings,” or feed the machine.
We admit the case is a close one, as suggested by the trial court; but, nevertheless, it was our duty to decide it, and under all the circumstances, there being no warning to the plaintiff, we consider it a case for the jury. There was substantial evidence to support their verdict.
The application for a rehearing is denied.