Christienson v. Rio Grande Western Railway Co.

• Decision Date: 29 December 1903
• Docket Number: 1499
• Court: Utah Supreme Court
• Parties: C. J. CHRISTIENSON, Respondent, v. THE RIO GRANDE WESTERN RAILWAY COMPANY, a Corporation, Appellant. [1]

74 P. 876

27 Utah 132

C. J. CHRISTIENSON, Respondent, v. THE RIO GRANDE WESTERN RAILWAY COMPANY, a Corporation, Appellant. ^[1]

No. 1499

Supreme Court of Utah

December 29, 1903

Appeal from the Fourth District Court, Utah County.--Hon. J. E Booth, Judge.

Action to recover damages alleged to have been caused by the negligence of the defendant. From a judgment in favor of the plaintiff the defendant appealed.

REVERSED.

Messrs Sutherland, Van Cott & Allison and Samuel R. Thurman, Esq. for appellant.

Morris Sommer, Esq., and D. S. Truman, Esq., for respondent.

BARTCH J., delivered the opinion of the court. BASKIN, C. J., and McCARTY, J., concur.

OPINION

BARTCH, J.,

STATEMENT OF FACTS.

The plaintiff brought this action to recover damages for personal injuries which he alleges he received through the negligence of the defendant. From the evidence it appears, substantially, that the plaintiff is 43 years of age, and for many years prior to and at the time of the accident which caused his injuries was in the employ of the defendant as a section hand. When he received his injuries, which was on January 29, 1901, he was working at a gravel bank at Santaquin, on the defendant's line of railway, shoveling gravel into a car provided by the company for that purpose. He had worked there in that capacity at different times since the year 1892. The bank was about 12 or 15 feet high, and contained different layers of dirt, cement, and gravel. At the place where he was working, where the accident happened, the thickness of the gravel, from the bottom of the bank to the cement, was about six feet, the cement was about two feet, and the dirt or ground on top of the cement about four feet thick, making the bank about twelve feet high at that point. The method employed to get the gravel down was to undermine the bank with pick and shovel, and then break it down from the top when it did not fall of its own weight. At the time of the accident, the bank had been undermined about two feet, was top-heavy, and broke away and fell of its own accord, causing the injuries of which complaint is made. The plaintiff was familiar with the method of loosening the gravel, and had on previous occasions, with other fellow workmen, undermined the bank for the same purpose. He was familiar with the bank; knew the material of which it was composed; was aware, while working there before and when the accident occurred, that the bank was undermined, that it was dangerous and might fall at any minute, and that either himself or his fellow workmen, or both, had undermined it. He was a man of experience in that business, of ordinary intelligence, and entirely familiar with all the surrounding conditions. At the time of the injury he was shoveling gravel upon the car at a place of his own selection. He worked there in November and December, 1900, then went to Ogden for several weeks, and when he returned he resumed work at the gravel bank.

Respecting these matters, the plaintiff himself, among other things, testified: "During the time that we were working there, we undermined the bank some right along, and I did as much as the rest. It was undermined in places, and then it would cave down, first at one place, then at another, and so on, so that at one time or another during the work it was undermined, all the way along from one end to the other. The men did the undermining, and I was one of them; the pick being the main thing used for this purpose. We undermined it in order to remove the support. There were places at the upper end where the bank would be likely to fall if it stood perpendicular without being undermined, the gravel being so loose that it would not hold its own weight up, but at the point where I was hurt the bank would not fall if it stood perpendicular. I knew this, and, when I started to undermine it, I did so in order to get it to fall at some time or another, I knew that, the more I undermined it, the more likely the bank would fall.... Whenever the track was close up to the bank, we would go up on top of the bank, and start to pick from the top, and throw it down. We would pick down through the cement, and get it out. I did a good deal of this myself, so that I knew pretty well the kind of material of which the bank was composed. I knew the kind of material of which the bank was composed at the time I was hurt and also knew it at the time I was working there in November and December." Speaking of what he and others did just prior to the accident, the witness said: "He (foreman) didn't tell us how to load the car, nor how to do our work, nor where to station ourselves. We went down to the car, picked up our shovels, and selected our own places; Searles and myself being on one side of the car and the rest of the men, five in number, on the other. I was attending to my work, bending down shoveling. I did watch the bank, however, to see if there should be anything to indicate a fall. I didn't think about its falling, but I wanted to be on the lookout. "When a bank is undermined, you can not tell but that it may fall any minute. I appreciated this. Somebody had told me that when a bank was undermined it might fall any minute. Of course, this was the first time I had ever worked in it. I would occasionally take a look at the bank to see if there were any signs of falling, so as to be prepared to run and get out of the way if it started to come. I fully appreciated that there was some danger that it might fall, and I wanted to be ready to run if it did. I didn't have any idea that it would fall."

The witness Gurley, who was at work with the plaintiff when the accident occurred, among other things, testified: "When I went to work here after dinner, it was on the same side of the car as Mr. Christienson and Mr. Searles. We all went down together, our tools being already there, for we had left them when we went to dinner. When we walked down there, we selected our places to go to work, and I think Mr. Christienson selected his. Seven of us went there and distributed ourselves around the place as we pleased. As I stood there I saw the bank, and it looked dangerous to me, because I thought it was undermined too far. It was undermined from two to three feet. I watched it pretty closely while I was working there, for I expected the bank to fall in, so that if it started to fall I was going to run. When it did fall it was for a distance of about thirty feet along the face of the bank. It didn't fall up to where I was, but pretty close to me. Searles ran and got out of the way. . . . The conditions there on the bank were plain to be seen. Anybody could look at it and see that it was undermined, and that the bank up here had no direct support under it. Any one could see this who stood there and looked at the bank. I looked at the bank, and saw that it was dangerous; and concluded to stay there, and work and watch it, and take my chances. Mr. Christienson, being right by my side, could see the danger just as I did. Everything that led me to conclude that it was dangerous was open, obvious, and plain to be seen with the eye. Anybody could see it." Testimony to the same effect was given by other witnesses. When the plaintiff rested, the defendant interposed a motion for a nonsuit, which was denied; and, the defendant offering no evidence, the case was submitted to the jury, whereupon a verdict was returned in favor of the plaintiff for the sum of $ 4,000. Thereafter, the plaintiff having consented, at the instance of the court to a reduction of the amount of the verdict to $ 3,000, judgment was entered accordingly, and the defendant appealed.

BARTCH, J., after a statement of facts as above, delivered the opinion of the court.

The appellant, in the first instance, insists that the court erred in denying the defendant's motion for a nonsuit. The motion was based, inter alia, on the ground that the plaintiff, in entering upon the performance of the labor in which he was engaged at the time of the accident, assumed the risks of the injuries he sustained. It is urged that the undermining and consequent falling of the bank was a part of the employment, and that the company, under the circumstances, was not liable for injuries received by the employee from the falling earth. The respondent contends that the company was bound to furnish the plaintiff a safe place to work, that he did not assume the risk of the caving of the bank, and that the assumption of risk was not a question of law for the court, but one of fact for the jury.

We think, under the evidence in this case, the motion for a nonsuit was well taken, and that the contention of the respondent is not tenable. The plaintiff has failed to show his employer guilty of actionable negligence. He himself had full knowledge of the premises, and was congnizant of the methods employed in the service, and of the conditions existing there. This is manifest from the evidence. It is true, the general rule is that, where a master employs a servant, he must exercise ordinary care to furnish the servant a reasonably safe place in which to perform the...