Chapman v. Southern Pac. Co.

• Court: Utah Supreme Court
• Writing for the Court: KING, J.:
• Citation: Chapman v. Southern Pac. Co., 41 P. 551, 12 Utah 30 (Utah 1895)
• Decision Date: 31 August 1895
• Docket Number: 591
• Parties: JAMES CHAPMAN, RESPONDENT, v. SOUTHERN PACIFIC COMPANY, A CORPORATION, APPELLANT

41 P. 551

12 Utah 30

JAMES CHAPMAN, RESPONDENT, v. SOUTHERN PACIFIC COMPANY, A CORPORATION, APPELLANT

No. 591

Supreme Court of Utah

August 31, 1895

APPEAL from the District Court of the Fourth Judicial District. Hon H. W. Smith, Judge.

Action by James Chapman against the Southern Pacific Company, a corporation, for personal injuries caused by defendant's negligence. From a judgment for plaintiff, defendant appeals.

Affirmed.

Messrs Marshall & Royle, for appellant.

Messrs Evans & Rogers, for respondent.

KING, J. MERRITT, C. J., and BARTCH, J., concur.

OPINION

KING, J.:

Plaintiff brought suit against the defendant for personal injuries, and obtained judgment for $ 3,300, from which the latter appeals. The appellant contends that the evidence fails to show any negligence upon its part which contributed to the accident, either in furnishing a reasonably safe place for plaintiff to work in, or in any other respect, but, on the contrary, that it was the negligence of plaintiff in failing to inspect the braces of the platform on which he worked, and that, if there was negligence other than plaintiff's it was the negligence of fellow servants.

The plaintiff testified substantially as follows: That in November, 1893, he was employed as a section hand, and worked in repairing defendant's railroad track, at or near Terrace, Utah. On the 14th or 15th of the same month, defendant brought a portable sawmill to Terrace, to be used in crosscutting ties. It was placed on a flat car, and operated by a small engine. On the left of the saw, which was set in a fixed frame, was a platform connected with the car by hinges in the same manner as the leaf of a table. This platform was nearly 10 feet long and about 20 inches wide, made by placing two planks, 2 inches in thickness, side by side, and when raised was supported by two hinges and two iron rods or braces projecting at an angle of 45 degrees from the car--one end bolted to the car--in such a manner as to render the braces movable, and the other placed in a slot the shape of a horseshoe, which was fastened to the under side of the platform near the corner. In addition to these braces, an iron staple protruded from the center of the platform on the lower side, and to this (when the platform was raised, ready for sawing) was linked an iron hook, which was securely fastened to the car. This prevented the platform from jarring or "bouncing" when any ties were thrown upon it, and so kept the ends of the braces in the slots and the platform from falling. From the 1st of November, 1893, when he entered the employ of the defendant, until the 15th, he worked on the section, but on that day was directed to work on the sawmill, and stand on this platform, and aid in pulling the ties as they were being pushed towards him from the saw, and to catch the pieces of wood as they came from the saw and throw them from the platform and the car. The plaintiff did not have charge of the business, and did not know anything about it, except as it was explained to him by McComie. The section foreman, Whalen, selected from the men the number required to operate the sawmill and engine, and directed them to accompany McComie, who took them to the mill and instructed each man what to do. Whalen had charge of everything on the section. He was frequently about the mill, but gave no orders concerning it to the men employed thereon, and while it was in operation he was engaged upon the railroad track. McComie had charge of the sawmill, and "bossed" the persons working thereon. Whalen "detailed the men, and McComie showed us what to do, and how to do it." After plaintiff began work on the mill, he observed that the platform upon which he was required to stand was worn very thin, caused by the ties being thrown thereon and the men standing upon it, and he called McComie's attention to its condition. The same evening the carpenter repaired it, substituting new planks for the old ones; McComie sending the plaintiff for the carpenter and belt man to make the repairs, and instructing them what to do. On the 18th of November, while at work, a heavy piece of tie fell from McComie's hands upon the platform, and caused it to "bounce up," which resulted in the braces slipping from their sockets and the platform falling. Plaintiff was thrown down, and his left hand came so close to the saw that the glove on his fingers was cut. The plaintiff then discovered that the safety brace (running from the car to the middle of the platform on the under side) had not been replaced, and said to McComie: "If this thing is not fixed, there is some person going to get hurt." And the answer was: "I will see that it is fixed." The platform was raised by plaintiff, and the side braces placed in their sockets, and he continued to work during the afternoon. Whalen was informed by him the same evening that unless the platform was fixed "somebody was going to get hurt," and the reply was: "Well, Jim, I have got nothing to do with it." On Monday morning, the 20th of November, plaintiff saw McComie and his foreman working about the mill. After loading ties for some time, the plaintiff was told by Whalen to go to work on the mill. It was running when he reached it, and he immediately took his position on the platform. He made no examination of the platform, as it was not his business to do so, and did only what he was directed. Upon this occasion he believed that the platform had been fixed since the Saturday preceding, when it fell, because he had seen men at work, and McComie had said it would be fixed. Neither McComie nor Whalen told him to examine the platform to see if the braces were in the slots. "Had I looked on Monday morning under the platform, I could have told whether the middle brace had been put in; but a man with a saw-mill running, and another man making a motion for him to get up and pull the ties away, and him taking hold of the ties and pushing it away, has no time to look for anything." After being at work for 15 minutes, a large tie, about 15 inches in diameter, was being cut, and a heavy piece was left in McComie's hand, and in throwing it off it struck the platform where plaintiff was standing, and, there being no safety brace to hold the platform secure, the jar caused it to "bounce up," thereby releasing the side braces from their fastenings. The supports being gone, the platform fell, and the plaintiff was thrown against the saw and his hand lacerated, two fingers being severed and the others badly injured. "The platform could not have fallen if the safety brace had been placed in it."

The roadmaster, Whalen, and McComie were called as witnesses for defendant. A portion of their testimony was corroborative of plaintiff's statement. The points wherein they vary from plaintiff are as follows: They all testified that there never was a safety brace connected with the platform, and that, when the new planks were provided, the slots and braces were arranged in the same manner as before. Whalen and McComie testified that they told plaintiff and the other employes connected with the mill "to look out for the braces, and see that they were put properly in the slots," and denied that plaintiff had spoken about the safety brace, or that any promise had been made to affix one to the platform. They also stated that examinations were frequently made of the mill, and that after the planks were renewed it was observed that the platform was in good condition "so far as the workmanship was concerned." Concerning the question of fellow servants, and who was in charge of the sawmill, the testimony of defendant's witnesses was in effect as follows: Mr. Hart, the road master, stated that Whalen was section foreman, and had charge of the yard, wood, and water on the section and the men working on the saw; that he employed and discharged them, and when repairs were necessary Whalen ordered them, but in his absence McComie or the engineer would. Whalen would detail men to help McComie run the mill, but he did not direct the men working with him on the car. If anything broke on the mill while Whalen was away, McComie had charge, and if Whalen was not there McComie would direct. "In the absence of Whalen he (McComie) would recommend what to do, direct when the mill was to be stopped and started, and would order repairs whenever needed about the mill." Whalen testified that he had charge of the section, and the direction of the sawmill. He directed the men at work on the mill when present. Some of the men he employed, and others were sent by the road master. "When I was not at the mill, McComie could call one of the men if he needed assistance. He had that authority. He had no authority to hire or discharge men. The mechanics and shopmen were not under his control. If McComie (when I was absent) asked them to repair the mill, they would respond. McComie was not particularly employed to attend the machinery, but to go to the shopmen and have some one repair it when out of repair, and he was supposed to observe any defects about the mill, and he frequently did." McComie testified that he was employed as sawyer shortly prior to the accident; that he examined the platform when it fell on Saturday, and the saw, "not because it was my duty, but because I was looking to the interest of others as well as myself. I think it was my duty to see to the safety of others." "When Whalen was not there, I was not boss around the machine. I was overseer of the saw."

We think there was sufficient evidence to go to the jury, under proper instructions, upon the question of negligence, and to support the verdict in this case.

Appellant insists that the sufficiency of the construction of the platform is established by the evidence, and that, if there was...