Brostrom v. Lynch-Cannon Engineering Co.
| Decision Date | 21 April 1915 |
| Docket Number | 2697 |
| Citation | 148 P. 423,46 Utah 103 |
| Court | Utah Supreme Court |
| Parties | BROSTROM et al. v. LYNCH-CANNON ENGINEERING Co. et al |
Appeal from the District Court; Second District; Hon. N. J. Harris Judge.
Action by Anna Brostrom and others against the Lynch-Cannon Engineering Company and another.
Judgment for plaintiffs. Defendants appeal.
AFFIRMED.
Boyd DeVine & Eccles for appellants.
E. A Walton for respondents.
The plaintiff Anna Brostrom, as widow of Niels Brostrom, deceased, and four other plaintiffs, to wit, Lavina Brostrom, Walter Brostrom, Bernard Brostrom, and Blenda Brostrom, as minor children of said deceased and said Anna, brought this action against the defendants to recover damages for the death of said Niels Brostrom. After alleging the relationship of the plaintiffs to each other and to the deceased and the corporate capacity of the defendants, the plaintiffs, in substance, alleged that on the 4th day of October, 1912, the Blacksmith Fork Light & Power Company, hereinafter called power company, as the owner, and the Lynch-Cannon Engineering Company, hereinafter styled engineering company, as contractor, were engaged in the construction of a certain brick building to be used as a power house by said power company; that on the date aforesaid the deceased was in the employ of said power company and said engineering company; that in said employment it was the duty of said deceased to mix and carry mortar to the brick masons who were working on said building, and while he was so employed, and while "in the act of carrying mortar across and over one of the scaffolds erected by said defendants, and while the said Niels Brostrom was performing the labor demanded of him by the defendants, the said scaffold, upon which the said Niels Brostrom, deceased, was passing, then and there gave way, and a board on the same broke, and the said Niels Brostrom, deceased, was then and there thrown from said scaffold" and fell about thirty feet upon an iron beam, by reason of which fall he sustained bodily injuries, from which he died on said day; that the defendants, and each of them, were careless and negligent in failing to provide said deceased with a reasonably safe place to work, and that they negligently and carelessly failed to construct a safe scaffold in that they failed to construct it of material of sufficient strength to bear the weight of the deceased, and that the defendants negligently failed to warn the deceased of the dangerous condition of said scaffold, and that by reason of said negligence and the death of said Brostrom, which was caused by said negligence, the plaintiffs suffered damages, etc. The defendants filed a joint answer, in which they admitted their corporate capacity, admitted that the deceased "was killed at the time and place alleged," admitted that the power company was the owner of the building mentioned in the complaint, and that the engineering company constructed the same, admitted that the deceased was employed to assist in the construction of said building, but only as a mortar mixer. The defendants denied all other allegations of the complaint. For a further answer they averred that the deceased was employed merely to mix mortar, and that it was no part of his duty to carry the same to the masons working on said building, and therefore he had no occasion to, and was not required to, go upon the scaffold mentioned in the complaint; that said deceased, "while not in the performance of any work for which he was employed * * * entered said building and was passing over and along or upon the scaffolding thereof wholly voluntarily, and that while attempting to pass over and upon a part of said scaffold or platform, * * * and at a place where said deceased had no right to be, he carelessly and negligently attempted to use said scaffold and a board thereof, and that the same broke and fell," and that the injuries to said deceased were caused by falling from said scaffold, and without any fault on the part of the defendants. The defendants also pleaded a settlement and accord and satisfaction and release from the widow, to which she replied by confessing and avoiding it upon the ground of fraud, etc. A trial resulted in a verdict and judgment for all of the plaintiffs against both defendants, and they appeal.
At the conclusion of plaintiffs' evidence the defendants moved for a nonsuit, which was denied, and, at the conclusion of all the evidence, they moved for a directed verdict, which was also denied, and they now assign the court's ruling in that regard as error.
As an illustration of the divergent views entertained by counsel for the respective parties, we remark that upon the one hand counsel for the defendants insist "that, under the uncontroverted evidence, the motion for a directed verdict should have been granted," while counsel for plaintiffs is convinced that not only should the judgment be affirmed but that the appeal is so clearly without merit "that a penalty ought to be added for the frivolity of the appeal." Under these circumstances, it is not likely that we shall succeed in changing the judgment of either party. Be that as it may, however, we must assume the responsibility of determining what the result shall be.
Two of the principal grounds upon which both motions were based were: (1) That the plaintiffs had failed to prove any negligence on the part of the defendants, or either of them; and (2) that there was not sufficient evidence to authorize a finding that the deceased was employed to carry mortar to the masons working on the scaffold, but that, upon the contrary, the evidence was to the effect that in carrying the mortar, and in going upon the scaffold, he was acting beyond the scope of his employment, and hence defendants did not owe him the duty of providing a reasonably safe scaffold to go upon. It is at least tacitly conceded that there were perhaps some facts produced in evidence from which the jury could infer negligence, and from which they might also infer that the deceased, if not directly, yet that he was impliedly, employed to carry the mortar to the masons working upon the scaffold at the time of the accident. What we have just said is made apparent from the motion for a directed verdict. Counsel based that motion, stating it in their own language, upon the ground that:
"There is only * * * an inference of employment for the particular purpose in which the deceased was employed at the time, to wit, in carrying mortar, * * * and that there is absolutely no evidence that he was employed for that purpose, except by inference, and that inference has been overcome by the absolute, positive, and uncontradicted testimony on the part of the defendants; further that there is no evidence of negligence upon the part of the defendant companies, except possibly by some inference, and that such inference, if it be indulged in, is entirely overcome by the absolute, positive and uncontradicted evidence on the part of the defendants."
In view of counsel's contention that there is not sufficient evidence to justify a finding that the deceased, at the time of the accident, was employed by the defendants to carry mortar, and that in doing that work he acted beyond the scope of his employment, we have taken the pains to carefully read all the evidence produced at the trial, all of which is preserved in a bill of exceptions. After reading the evidence, we are forced to the conclusion that, from all the facts and circumstances before the jury, they were authorized to find that the deceased was not acting beyond the scope of his employment in carrying the mortar to the masons. It is impractical to set forth in detail all the evidence bearing upon that subject. It must suffice to say that at the trial it was frankly admitted by the manager or superintendent of the defendants, who was in charge of the building operations that at the time of the accident the workmen were all engaged in completing the building, and, in furtherance of that object, some of them were doing one thing and some another, so that but very few were directly engaged in the particular line of work in which they had been engaged during the actual construction of the building. So far as the deceased was concerned, assuming that he was employed as a mortar mixer only, yet he had mixed and prepared all the mortar that was needed to complete the building, but it had not all been distributed to the masons, and could not be, except as they needed it to fully complete the walls by filling...
To continue reading
Request your trial