Frank v. Bullion Beck & Champion Min. Co.

• Decision Date: 14 March 1899
• Citation: 56 P. 419,19 Utah 35
• Court: Utah Supreme Court
• Parties: W. I. FRANK, APPELLANT, v. BULLION BECK AND CHAMPION MINING COMPANY, RESPONDENT

56 P. 419

19 Utah 35

W. I. FRANK, APPELLANT, v. BULLION BECK AND CHAMPION MINING COMPANY, RESPONDENT

Supreme Court of Utah

March 14, 1899

Appeal from the Fifth Judicial District Court, Juab County, Hon. E V. Higgins, Judge.

Action by plaintiff for personal injuries alleged to be the result of an accident that occurred in defendant's mine and through defendant's negligence.

From a judgment of non-suit plaintiff appeals.

Reversed.

Messrs Powers, Straup & Lippman for appellant.

The court erred in granting said motion because no grounds at all therefor are stated in the motion. It is error for the trial court to grant a non-suit, unless the grounds therefor are called to the attention of the trial judge and the plaintiff at the time the motion is made. Palmer v. Marysville Dem Pub. Co., 99 Cal. 168.

A general statement that the motion is made on the grounds of plaintiff's failure to prove any of the material allegations of the complaint is too general to raise any specific question, and is insufficient. Blecher v. Murphy, 81 Cal. 39.

The mere fact that the appellant knew of the cave-in is not sufficient to bar his action. It is necessary that he also should know the danger attending the circumstances and appreciate the same. Where the servant in obedience to the orders and requirements of the master, is ordered into a place of danger known to the master, and the facts and circumstances are such that to the servant as a reasonable, prudent person in the exercise of reasonable care, it is reasonably probable that the work directed to be performed may be safely done with the use of care proportionate to the danger, then the servant is not guilty of negligence, nor can he be charged with the assumption of risk in his attempt to perform said service. Mangum v. Bullion Beck (Utah), 50 P. 834; Lee v. So. P. R. R., 101 Cal. 118; Ill. Steel Co. v. Schymononski, 162 Ill. 447; Chi. Brick Co. v. Sobkowick, 38 Ill. 531; Schlocker v. Ashland Min. Co., 50 N.W. (Mich.), 839; Parker v. R. R., 48 S.C. 364.

The circumstances of the case but raised a question of fact for the jury whether appellant as a reasonable, prudent man was justified in obeying the order and command of his master. McKee v. Tourtellotte, 167 Mass. 69; Dells Lumber Co. v. Erickson, U.S.C. C., 1 Am. Neg. Rep. 794; Monahan v. Coal Co., 58 Mo.App. 68; Warner v. R. R. Co., 108 Mo.App. 184; Schroeder v. R. R., 108 Mo. 323; Richmond R. R. v. Rudd, 88 Va. 648; Miller v. U. P., 12 F. 600; Norfolk v. R. R., 24 L.R.A. 717; Hamilton v. Coal Mining Co., 18 S.W. 977; Dumas v. Stone, 25 A. 1097; Carbine v. R. R., 61 Vt. 348; Nadam v. Lumber Co., 43 N.W. 1135; Graham v. Coke Co., 18 So. 18; Schlitz v. Brewing Co., 59 N.W. 188, 59 N.W. 531; R. R. Co. v. Duffield, 47 Am. Rep. 319.

The question of negligence on the part of respondent and the question of negligence on the part of appellant should have been submitted to the jury. Wright v. So. P. Ry., 14 Utah 383; Chapman v. Ry., 12 Utah 30; Wilson v. Min. Co. (Utah), 52 P. 626; Reese v. Min. Co. (Utah), 49 P. 824; Handley v. Min. Co. (Utah), 49 P. 295; Ives v. Ry. Co., 144 U.S. 428.

George Westervelt, Esq., for respondent.

No recovery can be had by an employee while in the performance of a service not within the scope of his duty, if his opportunity for observing the danger was equal to that of his employer. Houston & C. R. Co. v. Fowler, 56 Tex. 452; 2 Thompson on Neg., 967, Sec. 7; Galveston and C. R. Co. v. Lempe, 59 Tex. 19; Wormell v. R. Co., 79 Me. 397; Georgia, etc., R. Co. v. Kinney, 58 Ga. 485; Mad River o. v. Barber, 5 Ohio St., 541; Beach on Contr. Neg., Sec. 133, pp. 362, 363: Taylor v. Mfg. Co., 140 Mass. 150.

If a servant has sufficient notice of the peril to put him on his guard, it is of no importance that such notice did not proceed from the master. 1 S. & R. on Neg. (5th Ed.), Sec. 203, p. 335, and cases cited in notes 16 and 17.

A servant can not recover for an injury which he would not-have suffered if he had not voluntarily left his post of duty to take a position of great danger, even though his act may have been well meant, and his object to continue serving his master. 1 S. & R. on Neg. (5th Ed.), Sec. 207, p. 349, and cases cited; Sammon v. R. Co., 62 N.Y. 251; O'Neill v. R. Co., 45 Iowa 546.

Where a servant wanders voluntarily away from his post of duty, prompted by curiosity or idleness, and is injured, he has no remedy. Wright v. Rawson, 35 Am. Rep. 275; Sinclair v. Berndt, 87 Ill. 174; Honor v. Albrightson, 93 Penn. St., 475; Batchelor v. Fortesque, 11 L. R. Q. B. Div. 474; Bunt v. Mining Co., 24 F. 847; Doggett, v. R. Co., 34 Iowa 284; Mandell v. Wheeler, 59 Ill.App. 459.

As has been said, the question presented in the lower court was one of law, not of fact, and the court in granting the non-suit in nowise invaded the province of the jury.

Where there is no conflict in the evidence, no dispute as to the facts, there is nothing to submit to the jury, and the question is one of law, and can be decided only by the court. 2 Thompson on Trial, Sec. 2243.

A non-suit should be granted where the evidence, in the most favorable light for the plaintiff in which the jury would be at liberty to view it, would not justify a verdict for him. Posten v. Tramway Co., 53 P. 391 (Colo.) ; Easter v. Hall, 40 P. 728 (Wash.) .

A trial judge should grant a non-suit when, if the case is being tried to a jury, a verdict for the plaintiff should be set aside for want of evidence to support it. Downing v. Murray, 45 P. 869 (Cal.) .

A judgment of non-suit will be entered where there is any element of proof wanting to make out plaintiff's case. Tripp v. Fiske, 4 Colo., 24.

McCarty, District Judge, delivered the opinion of the court. BARTCH, C. J., and BASKIN, J., concur.

OPINION

McCarty, District Judge

STATEMENT OF FACTS.

This is an action for personal injuries alleged to be the result of an accident that occurred November 4, 1895, in defendant's mine, and on the 800-foot level thereof. The complaint alleges, that defendant negligently and carelessly failed to properly timber said mine; that it carelessly and negligently ordered plaintiff into an unsafe and hazardous place to work without warning or informing plaintiff thereof; and that the alleged injuries complained of resulted from such negligence. The answer denies the allegations of negligence, and alleges contributory negligence on the part of plaintiff.

The plaintiff, at the time of the accident, was, and for nearly two years prior thereto had been in the employ of the defendant as a common miner. On the day of the accident Dennis Sullivan, another miner, was at work about twenty-five or thirty feet from plaintiff, and in the same stope. The stope was about forty feet long, and the same distance in width. The rocks composing the walls and roof when exposed to the air became somewhat slackened and loose, and required timbering. What is known as square sets were used for timbering this stope. The distance from the top of these square sets to the roof of the stope varied from eighteen inches to two and three feet. No stulls or props of any kind were placed between the top of the square sets and the roof to prevent the roof from falling or caving in. While at work the plaintiff heard a crash or noise indicating that there was a cave in the direction of where Sullivan was at work, and he immediately started in that direction to see what had happened. He went down one set of timbers (about seven feet) and over toward Sullivan. He had gone about thirty-five feet in all, when he came in sight of Sullivan, who had just been caved on. Several men were near Sullivan endeavoring to carry him out. A Mr. Brant, the shift boss, was standing near the cave when plaintiff came in sight of it, and he (Brant) ordered the plaintiff to go down and assist to carry Sullivan out. The plaintiff, in compliance with the order thus given by the shift boss, proceeded to where Sullivan was lying, and when in the act of carrying him out, another cave occurred which caused the alleged injuries to plaintiff, and for which he brings this action.

The plaintiff testified, in part, as follows, as to the situation when he came to where the shift boss was standing: "He (Brant) was standing probably five feet from me. I was not where I could see what had happened. I could see that Sullivan was down there and caved on. * * * I could n't see where the cave came from. * * * I had only been there perhaps half a minute; just got there to pack him out when I was hurt. I had no time to look around." On cross-examination, he testified: "Brant was the first man I saw. * * * He was at the place where I stopped. He was giving directions. He was standing looking toward the accident. * * * He saw me as soon as I came down. * * * The moment I got to him he said: 'Frank, you go down and help carry that man out. You are big and strong and can do more than some of the others.' I had just got in fair glimpse of the crowd down there when he spoke to me. * * * After Brant spoke to me, I went right down. My intention was to remain standing on top of the timber and not assist or aid the other men, and I would not have gone to the place without Brant's orders, he being present there and seeing how it happened. I never saw or was present at any cave that, I know of. * * * I can not say that when a cave occurs that within a short time thereafter pieces of rock or other dirt are likely to fall."

Other witnesses testified to practically the same facts, also as to the extent of the alleged injuries sustained by plaintiff.

When plaintiff rested his case, the defendant moved the court for a non-suit, as follows: "The defendant moves the court for a judgment of dismissal or non-suit against the plaintiff,...