Bennett v. Tintic Iron Co.

• Decision Date: 30 August 1893
• Citation: 9 Utah 291,34 P. 61
• Court: Utah Supreme Court
• Parties: SAMUEL BENNETT, RESPONDENT, v. TINTIC IRON COMPANY, APPELLANT

34 P. 61

9 Utah 291

SAMUEL BENNETT, RESPONDENT, v. TINTIC IRON COMPANY, APPELLANT

Supreme Court of Utah

August 30, 1893

APPEAL from a judgment of the district court of the first district and from an order refusing a new trial, Hon. John W Blackburn, judge. The opinion states the facts, except that the facts as stated infra in respondents brief are found in the abstract. The record showed that the list of 200 names was exhausted.

Reversed and remanded.

Messrs Williams and Van Cott, for the appellant.

They cited as to the question of impancling the jury. Mossean v. Veeder, 2 Ore. 113; Judge v. State, 8 Ga 173; De Pont v. McAdow, 6 Mont. 226; Williams v. Comm., 91 Pa. 493, 12 Am. and Eng. Encyc. 340-2. The miner was a fellow-servant. Railway Co. v. Baugh, 13 S.Ct. 914. Defendant had the right to show by witness Gundy that the work was done in the ordinary way of careful and prudent men.

Messrs. King and Houtz, and Mr. Samuel R. Thurman, for the respondent.

The negligence complained of was the superficial examination of the bank after the shot was fired. The bank consisted here partly of an old dump. The lower part of the bank was porphyry with seams of talc traversing it in all directions, while the upper half consisted of boulders and other loose materials (Ab. pp. 19, 21, 29, 33).

After the shot Gundy thought there might be a slide (Ab. 27), and made a superficial examination (Ab. 29). The quantity of earth brought down by the blast was not great. An examination at the point where the shot "had been fired" revealed the existence of cracks or fissures in the bank (Ab. 29, 30, 32, 35) radiating from the point of explosion. These crevices were caused by the blast and extended into the bank. Above the point where the hole was drilled the foreman examined slightly the crevice, but below and parallel with the road, no examination whatever was made (Ab. 35). This testimony comes from defendant's witness. Bennett was directed by the foreman to commence the work on the precipice, below the bank where the crevices were, without any examination by the foreman of the dump above the point of explosion (Ab. 29), or an investigation of the crack continuing below it to the base of the bank (Ab. 34, 35), "although the crack ran down to the level of the road" (Ab. 34).

This suit is brought by plaintiff to recover damages for the injuries sustained. He alleges in his complaint that the defendant was guilty of negligence in exploding a shot in the bank and creating a crevice and in suffering the bank to remain in a dangerous condition knowing of the existence of the said crevice and the precipice, and directing the plaintiff to work upon said road at a point between said crevice and said precipice without advising him of the danger thereof. Bennett did not assume the risks resulting from the negligence of his employer. The foreman Gundy was a vice principal and any negligence which he permitted or was guitly of was not that of a fellow servant. The doctrine of fellow-servant cannot apply to the duty of the employer to furnish a reasonably safe place to work. Pidcock v. Railway Co., 5 Utah 616; Trihay v. Mining Co., 4 Utah 486; Reddon v. Railway Co., 5 Utah 354; Seley v. Southern Pacific Co., 6 Utah 321; Hough v. Railway Co., 100 U.S. 214; Bowers v. Railway Co., 4 Utah 215. Plaintiff was entitled to rely upon the directions of defendant's foreman as to the safety of the place. Hawkins v. Johnson, 105 Ind. 39; Harrison v. Railway Co., 7 Utah 523; Keegan v. Kavanaugh, 62 Mo. 230; Leary v. Railroad Co., 139 Mass. 580; Cole v. Railway Co., 71 Wis. 114, and numerous other Utah cases were cited upon the question of negligence.

SMITH, J. ZANE, C. J., and MINER, J., concurred.

OPINION

SMITH, J.:

This is an appeal from a judgment in favor of the plaintiff, and against the defendant, for the sum of $ 5,000, rendered May 17, 1892, and for costs. The damages were awarded for a personal injury alleged by plaintiff to have been sustained by him while in the employ of the defendant, caused by the negligence of the defendant. Three assignments of error are made upon this appeal: First, that the court below erred in overruling the defendant's challenge to the panel of the trial jury; second, that the court erred in sustaining plaintiff's objection to a certain question asked of the witness William Gundy by defendant's counsel; and, third, that the evidence was insufficient to justify any verdict in favor of the plaintiff, and against the defendant.

Upon the first error assigned, to wit, the overruling of defendant's challenge to the panel of the trial jury, the following facts appear in the record: The case was set down for trial on the 9th day of May, 1892, in its regular order, upon the calendar of the court. That it was or would have been reached upon the call on that day, but on the 7th day of May the defendant appeared in court, and requested that the trial be postponed to the 17th on account of the absence of defendant's attorney. This was objected to for the reason that it might result in a continuance of the case for the term, as the jury trials were about concluded.

When the challenge was made the court made the following statement, which was not disputed, and which appears in the record: "The fact is this: The remark I made when it was set for the 17th was that perhaps the jury would be discharged before then, but that if it was we would issue a special venire, and I would continue the case to that time. There was nothing said on either side in the way of objection to this." The challenge was upon the ground that the jury had been summoned especially to try this particular case. It seems that by reason of the postponement of the case to the 17th the regular calendar of jury cases was concluded several days before that date, and the regular jury in attendance was discharged. When the day arrived for the trial of this case, in accordance with the statement of the court just quoted, a venire was issued for a jury to try the case, and it was challenged upon the ground stated by the defendant as follows: "Defendant now challenges the entire panel of the jury in the box, called in this case, and examined upon their voir dire, for the reason that there is no regular panel for the term of this court in attendance at this time; that the jury that has been called, as appears by the records of the court, have been summoned on a special venire this date issued and served by the marshal, he making the selection of jurors himself; and, further, that the said jury is not a regular panel selected from the lists for jurors for the term provided under the territorial statute, or by any other method, as a regular panel for the present term of this court."

Counsel for defendant stated, in connection with the challenge, that he had no objection to the personnel of the jury. We do not think the court erred in denying this challenge. There is abundant authority for holding that where there is no intimation or charge of bad faith the court has the power, whenever the necessity arises, and there is no regular jury in attendance, to impanel a jury to try a case which has been properly set, and is ready for trial to a jury. See Mackey v. People, 2 Colo. 13; Stone v. People, 2 Scam. 335; Vanderwerker v. People, 5 Wend. 530; Hunt v. Scobie, 45 Ky. 469, 6 B. Mon. 469; Reed v. State, 15 Ohio 217. We do not intend, in this case, to declare the rule that the court can capriciously break up the regular panel, and require parties to submit their controversies to an unsatisfactory array of jurors summoned upon a special venire. But in this case there is no pretense of bad faith on the part of the court, or of the plaintiff. If the defendant desired to object to the arrangement contemplated, of summoning a special jury, it should have given some intimation of its objection at the time it was first suggested by the court, when the defendant was asking a postponement of the trial. The defendant sat by, and took advantage of the postponement when it was given to it, when it was particularly announced that one of the conditions would be that the case would have to be tried by a special jury.

We believe the doctrine of equitable estoppel should prevail upon a question of practice in a case like this. If the party sits by, and, without objection, hears an arrangement made in court for his own advantage, and at his own instance, he should not afterwards be heard to complain of some particular part or detail of that arrangement. In this case, if the defendant desired a trial by the regular panel, it should have gone to trial at the time the case was first set. Instead of doing this, it asked a postponement, which it was foreseen would result in exactly what did happen, and which was at the time suggested, and the purpose of the court to summon a special jury was at the time fully expressed and declared. No objection was made. The continuance or postponement was accepted. Under such circumstances, we do not believe the defendant ought to be heard, in this court, to complain of the arrangement, inasmuch as it further appears that the jury was unobjectionable, and the whole proceeding, so far as the court was concerned, was fair.

The second error assigned is the ruling of the court sustaining an objection of the plaintiff to a question asked by defendant's counsel of the witness William Gundy. The question was as follows: Defendant having produced the witness William Gundy, who was...