167 P. 656 | Utah | 1917
This is an action to recover damages for personal injuries. The plaintiff, in his complaint, in substance, alleged that at, and for some time before, the accident resulting in his in
Counsel for defendant have assigned and argued numerous errors relating to the instructions given by the court and to the refusal of the court to charge as requested, and to the admission of certain evidence. We shall consider such assignments as we deem material in their order.
The court, at the request of the plaintiff, in substance, charged the jury that if they found from a preponderance of the evidence that the glass gauge was situate as alleged in the complaint, “that there was imminent danger of the same bursting and inflicting injury upon the plaintiff while at work”; that at that time there was an appliance in common use and for sale on the market which, if installed, would have “prevented any injury resulting from the breaking of such glass guage”; that plaintiff had directed defendant’s attention to the “danger resulting from the breaking of said glass gauge,” and that said danger could have “been prevented by the purchasing and installing of said appliance”; that the defendant promised that it would remedy such defect by supplying said “eye guard,” and that plaintiff, relying on said promise, continued to operate defendant’s machinery 'as he
“But unless you find by a preponderance of the evidence in this case that it is the general custom among persons owning and operating steam plants of the character of that in which plaintiff met with his accident to install and maintain eye guards about the glass gauges on steam separators therein, your verdict must be in favor of defendant and against plaintiff. ’ ’
To the portion of the charge last referred to the defendant did not except. Defendant’s counsel now insist that that portion of the foregoing charge which is excepted to states all of the elements which, in the judgment of the court, were necessary to authorize the jury to return a verdict in favor of the plaintiff, but that not all of the elements necessary to a recovery are included in the court’s statement, and for that reason the charge is erroneous. As pointed out, the court added at least two other propositions to that part of the instruction to which defendant’s counsel excepted and which they now insist did not contain all of the elements necessary to a recovery. The particular complaint which counsel make to that part of the instruction excepted to is that it entirely excluded from the jury the defenses of assumed risk and contributory negligence. It will be observed that the court did not include in that part of the charge excepted to, nor in the
Counsel for defendant insist that, under the undisputed evidence in this case, the plaintiff, as a matter of law, assumed the risk of injury incident to the bursting of the glass gauge aforesaid; that he could recover only in case that the jury found that, although the alleged promise was made, and that by reason of that promise he continued in the defendant’s employ, yet, if the jury should further find that the danger was so imminent and ‘ ‘ obvious that a reasonably prudent man would have declined to work at and near said glass gauge notwithstanding such promise,” the plaintiff could not recover in this action. The foregoing elements were embodied in the request to charge offered by the defendant, but the court refused to charge as requested.
1 Counsel contend that the court erred in refusing to so charge and in entirely omitting from its charge the elements or propositions contained in its request. The law is well settled that where the facts and circumstances are such that by reason of some defect in machinery or appli-anees the servant, by reason of his knowledge, experience, and appreciation of the danger, would be held to have assumed the risk in case of an accident, yet, if the master promises to remedy or repair .such defect so as to make the machinery or appliances reasonably safe, and the servant, in reliance of such promise, remains in the employ of the master and continues to discharge his duties as before, the master assumes the risk of injury for at least a reasonable time, unless the danger is so obvious that no man of ordinary prudence would continue to discharge the duties of the servant in view of the danger. The rule is stated in various terms by the different writers and courts, but the substance of all the different statements is practically the same. In Johnson v. Mining Co., 41 Utah, 142, 125 Pac. 407, Mr. Justice McCarty, speaking for this court, states the rule thus:
*284 “The rule as declared by practically all oí 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 promises 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.”
In 1 Sherman & Redfield, Law of Neg. (6th Ed.), in concluding section 215, where the rule is discussed, 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.”
In 26 Cyc. 1209, the rule is stated in the following words:
‘ ‘ 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.”
In 2 Cooley on Torts (3d Ed.) p. 1159, the author, after substantially stating the rule as in the foregoing quotations, concludes as follows:
“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.”
The United States Supreme Court, in the recent case of Seaboard, etc., Ry. v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475, reaffirmed in 239 U. S. 595, 36 Sup. Ct. 180, 60 L. Ed. 458, in the headnote to the opinion in 233 U. S., states the rule in the following language:
‘ ‘ Where there is promise of reparation by the employer, the continuing on duty by the employee does not amount to assumption of risk unless the danger be so imminent that no ordinarily prudent man would rely on such promise.”
It is unnecessary to pursue the authorities farther.
Complaint is also made that the court erred in refusing others of defendant’s requests. While the court might well have given one or two of defendant’s other requests, yet no prejudicial error resulted from refusing them, since the case otherwise was sufficiently covered by the court’s general charge.
“What was said with reference to your ability to do the work, and in particular with reference to your eyesight?”
The witness answered:
“Mr. Merrill said they did not feel safe with me in the boiler room with my vision in that condition; the company had talked the matter over and concluded that. ’ ’
Defendant’s counsel objected to the question upon the grounds that it was hearsay and incompetent, etc. The court overruled the objection, and permitted the witness to answer as before stated, and defendant’s counsel have assigned the ruling as error. In support of their contention counsel cite Meyers v. S. P., L. A. & S. L. R. Co., 36 Utah, 307, 104 Pac. 736, 21 Ann. Cas. 1229; also in 39 Utah, 198, 116 Pac. 1119 ; Idaho F. Co. v. Firemen’s Fund Ins. Co., 8 Utah, 41, 29 Pac. 826, 17 L. R. A. 586; 2 Jones, Com. Ev. (Blue Book), sections 357, 358. In defense of the ruling plaintiff’s counsel cite Webb v. Smith, 6 Colo. 366; 2 Wharton’s Ev., section 1177.
There is no merit in the contention that the evidence was insufficient to carry the case to the jury. That question is conclusively settled by the Supreme Court of the United States in the case to which we have referred, where the facts and circumstances Avere in effect like those in the case at bar.
The judgment is reversed, and the cause is remanded to the district court of Cache County, with directions to grant a new trial. The defendant to recover costs.