Arizona Cotton Oil Co. v. Thompson
Decision Date | 24 April 1926 |
Docket Number | Civil 2466 |
Parties | THE ARIZONA COTTON OIL COMPANY, a Corporation, Appellant, v. THOMAS T. THOMPSON, Appellee |
Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge.
Remittitur to be filed, otherwise judgment will be reversed, with directions for a new trial.
Messrs Sloan, Holton & Scott and Mr. G. P. Nevitt, for Appellant.
Mr Jesse C. Wanslee, for Appellee.
Thomas T. Thompson, hereinafter called plaintiff, brought suit under the Employers' Liability Law (Civ. Code 1913, pars. 3153-3162) against the Arizona Cotton Oil Company, a corporation, hereinafter called defendant, for personal injuries sustained while employed by defendant at its cotton seed oil mill. The complaint, after setting up the essential formal allegations of a cause of action of this nature, reads in part as follows:
The case was tried before a jury, which returned a verdict for plaintiff in the sum of ten thousand dollars, and, judgment being rendered on the verdict and the usual motion for new trial overruled, defendant appealed to this court.
There are some twelve assignments of error which we will consider as seems advisable. The first and fifth raise the issue substantially that the accident was caused solely by the negligence of plaintiff himself. In order to discuss this point intelligently, we will have to consider the evidence. It appears from the undisputed testimony that the accident occurred in what is known as the "seed house" of defendant. This is a building about one hundred feet long and fifty feet wide, parallel with the mill. The seed from the cotton which is ginned is conveyed through the seed house by what is known as a "screw conveyor." On the floor of the seed house there is a trough or box which carries in it an auger or endless screw. This floor conveyor box has a lid or cover, which is at times placed on it, and at times left off, in accordance with convenience for operating the mill. The seed is either shoveled into the box by hand, or when it drops down from the upper part of the seed house, as it does if a similar conveyor is carrying too much seed, if the cover is left off, the seed dropping from above piles up over the box and eventually feeds itself into the floor conveyor.
Just before the accident occurred, plaintiff, in the discharge of his duties, among which was to keep the machinery in and about the mill properly greased, oiled and adjusted, had occasion to make an adjustment in the overhead conveyor. In order to reach this overhead conveyor, which was some twelve or fifteen feet from the floor, he climbed up a ladder, walked across the top of a platform some six or seven feet from the floor, climbed a second ladder, and stood upon a small platform from which he could reach up and make the adjustment required. So far the facts are undisputed. After making this adjustment, plaintiff turned to come down. Just a little below the platform on which he stood at the time of making the adjustment there is an iron stay rod, a little larger than an inch in diameter. As to just what happened thereafter the testimony is somewhat in conflict. Plaintiff stated that:
This is the plaintiff's story of how the accident occurred. Of course, in considering these particular assignments of error, if there is any reasonable testimony supporting the verdict, we will not disturb it because there is a conflict in the evidence. Tovrea v. Yutich, 24 Ariz. 41, 206 P. 595; Durazo v. Ayers, 21 Ariz. 373, 188 P. 868. The question therefore is, Was it negligence per se on the part of plaintiff to step or jump from the platform on to the pile of cotton-seed in order to get down, or was it not? Defendant urges the rule of law to be that, if two methods for doing a piece of work are available to an employee, one being safe and the other dangerous, it is the duty of the employee to pursue the safe method, and that, if he chooses the dangerous one, he is guilty of negligence. Stated as an abstract proposition, this is no doubt true. It must appear, though, that the so-called dangerous method is one which under all the circumstances a reasonably prudent man would not use. Swansea Lease, Inc., v. Willison, 28 Ariz. 581, 238 P. 389. If under the facts and circumstances of the particular case it cannot be said as a matter of law that a reasonably prudent man would not choose the alleged dangerous method, it is not ipso facto negligence for the employee to use it, and the case may be submitted to the jury under proper instructions.
It appears from the evidence in this case that when plaintiff first went to work for defendant, one Riggin, who was the foreman of the mill, told an employee named Haney to take plaintiff over to the seed house and show him how to operate it. Haney did so, and among other things took plaintiff up on the very platform where the latter made the adjustment just before he was injured, and showed him how to make such adjustments. Thereafter, as plaintiff testified:
On cross-examination he testified:
We think that, where an employee sees the man who is instructed by his foreman to show him his duties perform them in a certain way, and when he later sees the superintendent of the plant do the very same thing, his employer cannot set up that, as a matter of law, he is guilty of negligence in doing the same thing he has seen his superiors do, especially when he has never been warned against such conduct. Gazette Printing & Pub. Co. v. Suits, 27 Ariz. 371, 233 P. 595. There was no error in refusing to take the case from the jury on the ground that it appeared conclusively it was plaintiff's sole negligence that caused the injury.
The second and fourth assignments of errors raise substantially the same point, to wit, that it was improperly brought to the attention of the jury that defendant carried liability insurance. We have stated in the case of Blue Bar Taxicab, etc., v. Hudspeth, 25 Ariz. 287, 216 P. 246:
We reaffirm the statement made in that case as a general principle of law. Whenever there is dragged into a case for personal injuries, by counsel for plaintiff, without any legitimate or legal excuse therefor, the fact that defendant is insured by a liability company, we will not hesitate to set aside a judgment in favor of the plaintiff. In this case, however, the abstract of record shows that defendant offered in evidence a statement signed by plaintiff which it is claimed contradicted his testimony given at the trial as to how the accident occurred. It was the contention of plaintiff that the statement was signed under circumstances which would not make it a fair statement as to the facts of the case. He was placed on the stand by defendant in order to identify the document, and was fully examined as to the circumstances surrounding his signature by counsel for the defendant. His own counsel then said:
To continue reading
Request your trial-
E. L. Jones Const. Co. v. Noland
...P.2d 325; Consolidated Motors v. Ketcham, 49 Ariz. 295, 66 P.2d 246; Fike v. Grout, 39 Ariz. 549, 8 P.2d 242; and Arizona Cotton Oil Co. v. Thompson, 30 Ariz. 204, 245 P. 673. In those cases it was held the admission of such evidence before a jury was reversible error. The exception of cour......
-
Turner v. Caldwell
...procuring such statement was a representative of defendant's insurance company.' In support of this rule see Arizona Cotton Oil Co. v. Thompson, 30 Ariz. 204, 245 P. 673; Mullanix v. Basich, 67 Cal.App.2d 675, 155 P.2d 130; Heinz v. Backus, 34 Ga.App. 203, 128 S.E. 915; Pinkerton v. Oak Par......
-
Kaumans v. White Star Gas & Oil Co.
... ... 633; Baker v. J. H. Hudson ... Drilling Co. , 149 Okla. 180, 300 P. 386; Arizona ... Cotton Oil Co. v. Thompson , 30 Ariz. 204, 245 ... To meet ... plaintiff's charge ... ...
-
Myers v. Rollette
...recovery is limited by the Workmen's Compensation Act. In this connection the defendant cites the case of The Arizona Cotton Oil Company v. Thompson, 30 Ariz. 204, 245 P. 673 (1926). The Arizona Constitution in section 7 of Article 18 provides for the enactment of an Employers' Liability La......