Andrews v. Free

Decision Date03 February 1915
Docket Number2677
Citation45 Utah 505,146 P. 555
CourtUtah Supreme Court
PartiesANDREWS 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 &amp Nibley and P. T. Farnsworth, Jr., for appellants.

A. C. Hatch and E. A. Walton for respondent.

STRAUP, C. J., FRICK and McCARTY, JJ., concur.

OPINION

STRAUP, C. J.

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:

"(11) It is the duty of the master to use ordinary care to provide a reasonably safe place for the servant to do the work which he is engaged to perform, and, if a servant is injured by reason of a failure to use such care, the breach of such duty is negligence for which the master is responsible to the servant."

"(15) You are instructed that the duty imposed by the law upon a master to use ordinary care to furnish a reasonably safe place for the servant to work in is a positive duty owing by the master to the servant and is noneligible; that is to say, that the master cannot relieve himself from the obligations resulting from a failure to perform said duty by leaving the same to be performed by some other person or servant, and the master must see to it, at his peril, that such duty is performed."

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:

"(1) Even should you find from the evidence in this case that the place where plaintiff was working at the time of his injuries was an unsafe place of work, and that his employer failed to use ordinary care to make said place of work safe, the plaintiff cannot recover in this action if you further find that the plaintiff knew of its dangerous condition, and with such knowledge continued to work there."

"(4) Should you find from the evidence in this case that prior to his alleged injuries the plaintiff had notice that the rock which caused said injuries was loose or likely to fall, and that after such notice he went into the ditch to the point where he was injured, your verdict must be in favor of Free & Taylor and against the plaintiff."

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,...

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8 cases
  • Barlow v. Salt Lake & U.R. Co.
    • United States
    • Utah Supreme Court
    • 24 Diciembre 1920
    ...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.
    • United States
    • Utah Supreme Court
    • 10 Agosto 1931
    ...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.
    • United States
    • Utah Supreme Court
    • 16 Mayo 1919
    ... ... 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.
    • United States
    • Utah Supreme Court
    • 11 Febrero 1919
    ... ... 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 ... ...
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