Andrews v. Free
Decision Date | 03 February 1915 |
Docket Number | 2677 |
Citation | 45 Utah 505,146 P. 555 |
Court | Utah Supreme Court |
Parties | ANDREWS v. FREE et al |
Appeal from District Court, Fourth District; Hon. A. B. Morgan Judge.
Action by Nicholas Andrews against J. S. Free and E. A. Taylor partners doing business under the firm name of Free & Taylor.
Judgment for Plaintiff. Defendants appeal.
AFFIRMED.
King & Nibley and P. T. Farnsworth, Jr., for appellants.
A. C. Hatch and E. A. Walton for respondent.
The plaintiff brought this action to recover damages for an alleged personal injury. In the complaint it is alleged that he was in the employ of the defendants, working underground, as a miner and mucker in a mining and drain tunnel. The negligence charged is a failure to furnish him a safe place to work. The particulars charged are that a loose rock weighing about 200 pounds was suffered and permitted to be unsupported and hanging from the side of the tunnel, which fell and struck him. The answer put in issue all the allegations of the complaint, including that of employment, and presented issues of contributory negligence, assumption of risk, and fellow service. The case was tried to the court and jury. The plaintiff adduced his evidence and rested. The defendants offered no evidence. A verdict and judgment resulted in favor of the plaintiff, from which the defendants appeal.
All the issues presented by the complaint and the answer were submitted to the jury. Among others, the court gave this charge:
Complaint is made of it. No complaint is made as to a want of evidence to support the allegations of employment. There is testimony to show a relation of master and servant. What is urged against the first charge is that it "is not applicable to the facts in this case and being possible of misconstruction," and that "the doctrine of safe place is not involved in this case under the uncontradicted evidence"; against the second, "not applicable to the facts and is misleading, in this, it appears that the place in question was by its very nature dangerous and not a safe place, and the very purpose of the work being to make a dangerous place safe."
This is not a place where a servant was creating a place to work, or temporarily changing or rendering one unsafe by the ordinary prosecution of his work, or attempting to make a dangerous or unsafe place safe. The evidence does not disclose that the plaintiff was discharging or had cast on him any such duties. The point sought to be presented lies deeper than that attempted to be raised on the exception to the charge. It goes to the question of whether the plaintiff, as to the issue of the master's duty to furnish the plaintiff a safe place to work, was entitled to go to the jury. If the defendants are right in their contention, then should the case have been withheld from the jury; for the actionable negligence is predicated on an alleged failure of the defendants to furnish him a safe place to work. Whether a duty was or was not imposed on the defendants as a master to furnish a safe place to work was for the court. If, on the undisputed evidence as is argued, no such duty was imposed, then should the case have been withheld? But to impute error to the court in such particular required a motion or request on that ground to so withhold the case. No such motion was interposed. True, a motion was made for a nonsuit which was overruled. But look at the grounds. They are: (1) That the negligence which caused the injury was that of a fellow servant; (2) that the plaintiff assumed the risk; (3) want of evidence to show that the defendants "were the master of the plaintiff"; (4) want of evidence to show "that ordinary care and diligence was not used in respect to providing the plaintiff a safe place to work," and that the evidence disclosed "that all the care and precaution that should have been taken under all the circumstances of the case was taken." As to these, the court held that there was evidence to let the case to the jury. No complaint is made of that. No error is assigned as to the overruling of the motion for nonsuit, and no complaint whatever made as to the court's action sending the case to the jury. But complaint is now made that the charge is bad, because the subject charged on is not involved. As well say a charge is bad because the court had no jurisdiction. When the court resolved the questions presented by the motion for a non-suit against the defendants, which ruling is not complained of and until it is assailed and presented for review must be presumed was properly made, then does it follow that it was proper to charge on the questions or subjects involved in the charge? The point is analogous to a complaint made of a charge on negligence, on the ground that there was no evidence to support the allegations of negligence.
The law stated in the charge is not questioned, except that stated in the latter portion of No. 11, "the breach of such duty is negligence for which the master is responsible to the servant." It is claimed this was equivalent to a direction of a verdict for the plaintiff. We do not think that, even considered by itself; and certainly no such thought or inference is permissible upon a consideration of the whole charge. We are of the opinion that the exceptions are ill-founded.
The defendants requested this:
The rock did not fall directly on the plaintiff. It fell upon a track in the tunnel, and from there bounded into a ditch about twelve feet away and to the side of the track where the plaintiff was at work, and there struck him. The court in substance gave the second request. It charged that, if the plaintiff knew the place "was a dangerous place from which rock might fall so as to injure plaintiff, your verdict must be in favor of Free & Taylor and against the plaintiff." It refused the first. We think rightly,...
To continue reading
Request your trial-
Barlow v. Salt Lake & U.R. Co.
...the jury the client of the pugnacious advocate is the one whose cause is injured. In the language of Mr. Justice Straup, in Andrews v. Free, 45 Utah 505, 146 P. 555, Ann. Cas. 1918A, "It, however, is not to be presumed, in the face of the charge, that the jury rejected what the court told t......
-
Tanner v. Provo Reservoir Co.
...or specifying the alleged error. Teakle v. San Pedro, L. A. & S. L. R. Co., 32 Utah 276, 90 P. 402, 10 L. R. A. (N. S.) 486; Andrews v. Free, 45 Utah 505, 146 P. 555; Perrin v. Union Pac. R. Co., 59 Utah 1, P. 405. Other opinions of this court to the same effect are referred to in the cases......
-
Wooton v. Dragon Consol. Mining Co.
... ... similar to the case of Miller v. Utah Con. Min ... Co. , supra. Also see Urich v. Min ... Co. , 51 Utah 206, 169 P. 263; Andrews v ... Free , 45 Utah 505, 146 P. 555. Those cases dispose ... of the idea of assumed risk in this case ... So far ... as concerns ... ...
-
Miller v. Utah Consol. Mining Co.
... ... same effect are Trihay v. Min. Co. , 4 Utah ... 468, 11 P. 612; Cunningham v. U. P. R. R ... Co. , 4 Utah 206, 7 P. 795; Andrews v. Free ... et al. , 45 Utah 505, 146 P. 555; Dovich v ... Chief Con. Min. Co. , 53 Utah 522, 174 P. 627; ... Proctor Coal Co. v. Price's ... ...