Eddington v. Union Portland Cement Co.

• Decision Date: 30 January 1913
• Docket Number: 2406
• Citation: 42 Utah 274,130 P. 243
• Court: Utah Supreme Court
• Parties: EDDINGTON v. UNION PORTLAND CEMENT COMPANY

130 P. 243

42 Utah 274

EDDINGTON v. UNION PORTLAND CEMENT COMPANY

No. 2406

Supreme Court of Utah

January 30, 1913

APPEAL from District Court, Second District; Hon. N. J. Harris Judge.

Action by Henry W. Eddington against Union Portland Cement Company.

Judgment for defendant. Plaintiff appeals.

REVERSED AND REMANDED.

Soule and Soule, and Halverson & Pratt for appellant.

APPELLANT'S POINTS.

The duty to provide a reasonably safe place, as well as reasonably safe machinery in which and with which the servants are employed rests upon the employer or master and is one which cannot be delegated to an agent or servant so as to escape responsibility for their negligent performance. (Anderson v. Dailey Mining Company, 16 Utah 28; Pool v. Southern Pacific Company, 20 Utah 210; Wood v. Rio Grande Western Ry. Co., 28 Utah 351.)

And the servant who is injured by the failure of the master to perform this duty cannot be said to have assumed the risk or hazard occasioned thereby unless he comprehends and appreciates, or in the exercise of ordinary care for his own safety and the intelligence that he possesses he should have comprehended, understood and appreciated the increased hazards, which are questions of fact to be determined by the jury and which the plaintiff, in his complaint intimated and this intimation was admitted by the demurrer. (Cook v United States Smelting Co., 34 Utah 190.)

When the nature of the master's business is such as to require it, the law imposes upon the master the duty of making and promulgating rules to permit the safety of his employees. (Pool v. Southern Pacific Co., 20 Utah 210; Boyle v. Union Pacific Co., 25 Utah 432; Johnson v. Union Pacific Coal Co., 28 Utah 46; Merrill v. Oregon Short Line Co., 29 Utah 264.)

C. S Varian and H. H. Henderson for respondent.

RESPONDENT'S POINTS.

Notwithstanding a promise by the master to remedy a defect complained of, if the danger is so obvious that a reasonably prudent man would not incur it, the rule does not apply, and the servant continues at work at his own risk. This proposition is affirmed by the weight of authority and is approved by this court. (Johnson v. Mining Co., 41 Utah 142, 125 P. 407; Butler v. Frazee, 211 U.S. 459-466; Labatt, M. & S., sec. 212.)

The service undertaken by plaintiff was at best, hazardous at all times, and plaintiff entered and continued in the employment with actual knowledge and appreciation of the dangerous conditions, relying upon a suspension of the assumed risks, or a shifting thereof to the defendant for a reasonable time, his complaint must show expressly or by natural inferences from the facts stated that the time alleged was a reasonable one. (Stone v. Railroad, 35 Utah 335; Mangum v. Mining Co., 15 Utah 540; Johnson v. Utah Con. Mining Co., 125 P. 407; Soule v. Weatherby, 118 P. 833-836; Burns v. Windfall M. Co., 146 Ind. 261, 45 N.E. 189-190; Stephenson v. Duncan, 73 Wis. 404, 41 N.W. 338; Morbach v. Mining Co., 53 Kan. 731, 37 P. 122.)

Whether the plaintiff was or was not relieved for the time from the burden of assuming the risk, he was not at any time excused from the duty of exercising vigilance, and such a degree of care proportionate to the danger confronting him in the ordinary discharge of his duties, as a reasonably prudent man would use under like conditions. (Fritz v. Gas Co., 18 Utah 493; Shaver v. Home Tel. Co., 36 Ind.App. 233, 75 N.E. 288; Ergo v. Merced Falls Co., [Cal.], 119 P. 101; Colorado Ry. Co. v. Reynolds [Col.], 116 P. 1043-4; Gondie v. Foster, 202 Mass. 226, 88 N.E. 663; Maki v. N. P. Coal Co., 187 F. 389-393.)

FRICK, J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

This is an appeal from a judgment dismissing the action after sustaining a general demurrer to the complaint. Before proceeding to a consideration of the merits, we are required to dispose of the motion interposed by respondent to dismiss the appeal. The motion is based upon two principal grounds: (1) That no undertaking on appeal, as provided by Comp. Laws 1907, sec. 3305, has been filed; and (2) that the alleged affidavit, filed in lieu of an undertaking on appeal, is insufficient and unauthorized, for the reasons hereinafter stated.

Compiled Laws 1907, sec. 1017, on which the affidavit aforesaid is made, reads as follows:

"Any person may institute, prosecute, defend, and appeal any case in any court in this state on taking and subscribing, before any officer authorized to administer an oath, the following: I, A. B., do solemnly swear (or affirm) that owing to my poverty I am unable to bear the expenses of the action or legal proceedings which I am about to commence or the appeal which I am about to take, and that I verily believe I am justly entitled to the relief sought by such action, legal proceedings or appeal."

This court, in Hoagland v. Hoagland, 18 Utah 304, 54 P. 978, held that, because an undertaking was expressly required by Compiled Laws 1907, sec. 3305, section 1017, supra, did not authorize the appellate court to dispense with the undertaking provided for in said section 3305. Section 3305 reads as follows:

"An appeal is taken by filing with the clerk of the district court in which the judgment or order appealed from is entered a notice stating the appeal from the same, or some specific part thereof, and serving a similar notice on the adverse party or his attorney. The order of service is immaterial, but within five days after service of the notice of appeal an undertaking shall be filed or a deposit of money be made with the clerk, as hereinafter provided, or the undertaking be waived in writing by the adverse party: Provided, that where the appellant makes and files with the clerk of the court from which the appeal is taken an affidavit in the form set out in section 1017, no bond on appeal shall be required; and where such affidavit is filed, the clerk of the court from which the appeal is taken shall certify that the appellant has made and filed an affidavit as provided for in section 1017." (Italics ours.) In order to meet the objections of this court as they appeared in Hoagland v. Hoagland, supra, the legislature, after that decision, in 1899, amended section 3305, supra, by adding thereto that portion printed in italics. Laws 1899, p. 83.

The appeal in this case is therefore based upon section 3305 as amended, and not as it stood when Hoagland v. Hoagland was decided. Respondent, however, contends that what was added to section 3305 was, in effect, an amendment of section 1017, and that under our Constitution laws cannot thus be amended. In our judgment, the amendment to section 3305 was properly and constitutionally made; and in making it the legislature did not intend to amend, nor make the attempt to amend, section 1017. All that was done was to make the affidavit set forth in section 1017 sufficient on appeal. This was done for the sole reason that this court had theretofore held the affidavit provided for in said section insufficient to perform such a function because of what was contained in section 3305 before it was amended. The legislature therefore obviated the apparent incongruity between sections 1017 and 3305 by changing section 3305 as before indicated.

The Constitution of this state (article 8, sec. 9) permits appeals from all final judgments "under such regulations as may be provided by law." The legislature therefore had the power to regulate appeals, and to provide that those who, by reason of their poverty, were unable to give the undertaking on appeal provided for by section 3305 might dispense therewith, and might nevertheless appeal by filing the affidavit provided for in section 1017. The legislature having legislated upon a subject which is clearly within its constitutional powers, the courts have no alternative, but must enforce the law.

The contention that some portions of sections 1016 to 1019 inclusive, relating to the matter of costs, are void, because placed in the Revised Statutes of 1898 without authority, even if conceded, could have no bearing upon the question now under consideration. But the contention is not tenable. All that is contained in sections, aforesaid, is there by the authority of the legislature. Whatever change of phraseology or omission of words there may be between said sections as they now stand and the original acts from which they were taken was clearly authorized by section 4 of chapter 85, Laws of 1896. Laws 1896, p. 296. Moreover, if what is said in said chapter could be held insufficient authority, the matter was nevertheless settled by chapter 7, Laws 1899, in which the Revised Statutes, as printed, were approved and adopted by a special legislative...