Faulkner v. Mammoth Min. Co.

• Citation: 66 P. 799,23 Utah 437
• Court: Supreme Court of Utah
• Decision Date: 19 April 1901
• Parties: JOSEPH FAULKNER, Respondent, v. MAMMOTH MINING COMPANY, Appellant

66 P. 799

23 Utah 437

JOSEPH FAULKNER, Respondent, v. MAMMOTH MINING COMPANY, Appellant

Supreme Court of Utah

April 19, 1901

Appeal from District Court, Juab County.--Hon. W. M. McCarty, Judge.

Action by Joseph Faulkner against the Mammoth Mining Company. From a judgment in favor of plaintiff, defendant appeals.

AFFIRMED.

Messrs Rawlins, Thurman, Hurd & Wedgwood and Bennett, Howat Sutherland & Van Cott, for appellant.

Messrs Powers, Straup & Lippman, for respondent.

BASKIN, J. Miner, C. J., concurs in the judgment; Bartch, J., concurs.

OPINION

BASKIN, J.

The complaint, in substance, alleges that the plaintiff on the fifteenth of June, 1898, was an employee of the defendant, and as such was working as a miner in the defendant's mine; that the defendant negligently suffered and permitted the underground workings where the plaintiff was engaged at work under the order and directions of the defendant to become and be in an unsafe and dangerous condition, as the defendant well knew, by reason of negligently failing and neglecting to remove decayed portions of the timbers, and by negligently failing to properly timber said workings, and causing said workings to be timbered in a dangerous manner, and that while the plaintiff was so engaged at work, and not knowing the dangerous condition of said underground workings, and relying on the assurance given him by the defendant that said workings were safe, large quantities of earth, rock, and ore fell, by reason of the negligence of the defendant as aforesaid, and struck the plaintiff, and permanently injured him. The answer denied the negligence charged, and alleged that the injuries of the plaintiff, if any were suffered by him, were caused by his own fault and negligence, which directly contributed thereto.

1. The first objection presented by counsel for the appellant is that the court erred in admitting certain testimony relating to a rotten sill in the mine, which was objected to on the ground that the same was immaterial. There are numerous cases which hold that such an objection is too general to be considered by an appellate court. 8 Enc. Pl. and Prac. 227. It is not necessary, however, in this case, for us to pass upon that question. It appears from the record that when said objection was made, and upon plaintiff's attorney stating that he could not present everything at once, the trial judge said: "I think it would be proper, if they can show that the timbers above [where plaintiff was injured] were defective, and that there were not sufficient timbers from below." He further stated that he would sustain a motion to strike out the testimony unless so connected. In many cases the relevancy of a fact depends upon its connection with others. In such cases the court can not determine whether the first fact in the chain of evidence is relevant until those with which it is connected are shown, and as they can not all be presented at once, in practice, unless it is apparent that in no event can the offered testimony become material, from necessity the court is often compelled to admit, over objection, evidence the relevancy of which at the time of the introduction thereof is not apparent, on the condition that the party offering the same will afterwards introduce other evidence so connected with the evidence objected to as to show the relevancy of the latter. In instances of that kind an objection to such evidence is not available unless its relevancy is not so shown, and a motion to strike the evidence out is made and refused after a failure to show its relevancy. 2 Thomp. Trials, sec. 717; Bayliss v. Cockcroft, 81 N.Y. 363; Ditch Co. v. Ream, 27 Ore. 129, 39 P. 998; Dillin v. People, 8 Mich. 357; State v. Meader, 54 Vt. 651; People v. Chavez, 103 Cal. 407, 37 P. 389. In the case at bar, if, after the objection was made, the evidence objected to was not, in the opinion of defendant's counsel, so connected with other evidence adduced as to show its relevancy, a motion should have been made to strike it out, or a request made to instruct the jury to disregard the evidence. This was not done.

2. The second assignment of error discussed by appellant's counsel is that the trial court erred in refusing the defendant's request to instruct the jury to return a verdict for the defendant. The ground upon which the appellant predicates the right to such an instruction is that the plaintiff assumed the risk of working in the place where he was injured. The assumed risk of a servant is wholly different from his contributory negligence, although the effect of both is to defeat a recovery. Beach, Contrib. Neg., secs. 15, 16; Bailey, Mast. Liab., p. 197; Mundle v. Manufacturing Co., 86 Me. 400, 30 A. 16; Miner v. Railroad Co., 153 Mass. 398, 26 N.E. 994. Contributory negligence of a servant consists of the performance of some negligent act, or the negligent omission to perform some duty, which materially contributed to, and, in conjunction with the negligence of the master, was one of the elements of the proximate cause of, an injury to the servant. Assumed risk is a contract, and may be implied as well as expressed. When a servant enters upon or continues in a service with full knowledge that it is dangerous, and is fully aware of the extent of the danger to which he is exposed, there is an implied contract of assumed risk, by which, on the principle of the maxim, "Volenti non fit injuria," the servant waives his right to recover for injuries received by him in such service. An assumed risk is an affirmative defense, essentially different in its character from the defense of contributory negligence, and should therefore be pleaded as an implied contract, in bar and as a waiver of the plaintiff's right to recover. Bailey, Mast. Liab., pp. 197, 198; Beach, Contrib. Neg., secs. 15, 16, 370, 371; Railway Co. v. Tracy, 14 C. C. Ap. 199, 66 F. 931, 936; Railroad Co. v. Orr, 84 Ind. 50; Nicholaus v. Railway Co., 90 Iowa 85, 57 N.W. 694; Mayes v. Railway Co., 63 Iowa 562, 14 N.W. 340, 19 N.W. 680; 13 Enc. Pl. and Prac. (2 Ed.), 914.

3. In connection with this question, appellant assigned as error the refusal of the court to give the following instruction "If you believe from the evidence that in the place in which the plaintiff was working the conditions were constantly changing by the act of the plaintiff, the rule requiring the defendant to furnish a reasonably safe place for plaintiff to work does not apply." The doctrine of assumed risk has a material bearing on this assignment, unless the latter covers entirely different ground than is covered by the second assignment. A further examination into the law of assumed risk is therefore necessary. It is implied from the contract of service that the place in which the servant is employed to work is as reasonably safe as the hazard nominally incident to the work in hand permits, and that the master will, during the servant's term of employment, use due and ordinary care and skill in keeping it in that condition; and although it is also implied that the servant assumes all unavoidable risks necessarily incident to the work in hand which are so apparent that the servant must be aware of the immediate presence and extent of the danger to which he is exposed, or by the exercise of ordinary care and prudence could readily ascertain these facts, it is not implied that the negligence of the master is a risk assumed by the servant. When the master employs one to enter into his service, he impliedly says to him that he will exercise ordinary care and skill to protect him from all danger except such as is obvious and necessary. Pool v. Southern P. Co., 20 Utah 210, 58 P. 326, and cases there cited; Railroad Co. v. O'Brien, 161 U.S. 451, 16 S.Ct. 618, 40 L.Ed. 766; Railroad Co. v. Daniels, 152 U.S. 684, 14 S.Ct. 756, 38 L.Ed. 597; Railroad Co. v. Baugh, 149 U.S. 368, 13 S.Ct. 914, 37 L.Ed. 772. The doctrine of assumed risk by the employee does not lessen the master's implied duty to supply and maintain a reasonably safe place for the performance by the servant of the work required of him, except when the place furnished and maintained is so obviously unsafe that a reasonably prudent person would not attempt to work in it, and with a full and intelligent understanding of its defects, or after a failure to exercise reasonable care to ascertain its condition, gave full consent, express or implied, to abide by the consequences which might follow from its use. Southern P. Co. v. Johnson, 16 C.C.A. 317, 69 F. 559, 573, 574; Bender v. Railway Co., 137 Mo. 240, 245, 37 S.W. 132. When the servant acts "under the immediate direction of the master's foreman, that fact is equivalent to an assurance that the servant may safely proceed; and he is not bound in such case to search for danger, but may rely on the judgment and conduct of the foreman." Herdler v. Range Co., 136 Mo. 3, 37 S.W. 115; Sullivan v. Railroad Co., 107 Mo. 66, 17 S.W. 748, 28 Am. St. Rep. 388. Undoubtedly, unless the danger is so obvious as to prevent a reasonably prudent man from assuming the risk, the rule is that the servant who acts under the personal direction of the master or his foreman does not assume any risk except such as is an ordinary and reasonable incident of the employment. Mangum v. Mining Co., 15 Utah 534, 50 P. 834; Bailey, Pers. Inj., sec. 989 et seq., and cases cited. The evidence in this case fails to disclose any such obvious danger. In the case of Pool v. Southern P. Co., supra, this court said: "The deceased, when he obeyed the order [of the foreman], had a right to presume that he would not be exposed to unnecessary danger, and that the defendant had used proper care to render the place where he was at work reasonably safe." In the case at bar the plaintiff, when...