Arizona Cotton Oil Co. v. Thompson

Decision Date24 April 1926
Docket NumberCivil 2466
PartiesTHE ARIZONA COTTON OIL COMPANY, a Corporation, Appellant, v. THOMAS T. THOMPSON, Appellee
CourtArizona 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.

Lockwood J. McAlister, C. J., and Ross, J., concur.

OPINION

Lockwood, J.

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 plaintiff in the due course of his said labor, services, and employment . . . went upon a certain scaffold to make certain adjustments in the machinery, . . . and, after making said adjustments, started to climb down from said scaffold, and while exercising reasonable and careful care for his own safety stepped from a certain board and iron rod onto a certain pile of cotton seed, and the said cotton seed gave way and slid down and toward a certain conveyor box, in which certain machinery was used to convey cotton seed. . . . That the plaintiff slid down along with the said cotton seed, and his right foot slid into the said conveyor box and became entangled with the machinery in said conveyor box; the said machinery crushing . . . and otherwise mutilating plaintiff's right foot. . . ."

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:

"Of course I don't remember whether I stepped off on these rods that they talk about or not. I don't know anything about that. Anyway, I jumped off into the seed, and in some way I slid into the conveyor and caught my foot. When I stepped off I was facing north, not in the direction of the conveyor box. I stepped on this pile of seed and walked down as I had been accustomed to doing, and when I got almost to the bottom, very near down to the floor, why, the seed gave away and I felt it give away under my body, and it fed me into the conveyor."

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:

"And then we came back down to the end of the board or other platform. Mr. Haney jumped down on the pile of seed and walked on off, and I followed him. . . ."

On cross-examination he testified:

"When I came down from the platform I stepped on the pile of seed. I came down the same way Mr. Haney came down when he went up there and showed me how to operate this. I have seen others come down that way. I saw Mr. Clark, the superintendent, come down that way. I don't know the exact date, but I went over there one evening, and he and another man were doing some work on some part of the machinery, and when they got ready to come down, they jumped on the pile of seed and came down just the same way as I did when I got hurt. There were no rules of the company posted in and around either one of those buildings warning employees of the danger as to the operation of the mill. . . ."

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:

"The consequence of such information is well known, and is sufficient to require a new trial. It is useless for counsel to talk of the innocuous character of this evidence, when they at the same time, in order to get the information before the jury, are willing to imperil any verdict which might be rendered. All lawyers know the rule in regard to such evidence, and they must not expect the court to establish the rule, and then wink at its violation."

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:

"Q. Under what conditions did you sign it, Mr. Thompson? A. Well if I can go back and tell in my own words just exactly how I...

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