Grandin v. Southern Pac. Co.

• Decision Date: 19 April 1906
• Docket Number: 1709
• Citation: 30 Utah 360,85 P. 357
• Court: Utah Supreme Court
• Parties: GRANDIN v. SOUTHERN PAC. CO. [*]

85 P. 357

30 Utah 360

GRANDIN v. SOUTHERN PAC. CO. ^[*]

No. 1709

Supreme Court of Utah

April 19, 1906

APPEAL from District Court, Second District; J. A. Howell, Judge.

Action by Carl J. Grandin against the Southern Pacific Company. From a judgment for plaintiff, defendant appeals.

REVERSED.

P. L Williams and Geo. H. Smith for appellant.

If no demand for a jury be made in writing or orally, or if a party, who has made demand properly, fail to appear at the trial, in either event, there will be a waiver of the jury. These provisions of the statute are not in violation of the Constitution, but are the proper exercise of legislative power, and are, therefore, valid." (Farwell v Murray, 104 Cal. 464; Conneau v. Geis, 73 Cal 176; Hillman v. McWilliams, 70 Cal. 447; Knight v. Farrell, 113 Ala. 258; Plank Road Co. v. Hopkins, 69 Mich. 10; Chaslon v. Martin, 81 N.C. 51; Sale v. Miggett, 25 S.C. 72; Gleaves v. Davidson, 85 Tenn. 380.)

In the case at bar the plaintiff had already testified that he could not stand the work and had quit. The other witness testified that the wheels of the truck twisted. Why the plaintiff could not stand the work, why he quit, and why the wheels of the truck twisted, were questions for the jury to determine. To permit witnesses to express their opinions upon these matters was prejudicial error. (Black v. Bell Tel. Co., 26 Utah 451; Jensen v. McCormick, 26 Utah 142; Nichols v. Railroad, 25 Utah 240; Stoll v. Mining Co., 19 Utah 271; Woolley v. Maynes, Wells Co., 18 Utah 232; Reese v. Mining Co., 17 Utah 489; Saunders v. Southern Pacific Co., 15 Utah 334; Hamer v. Bank, 9 Utah 215; Forwarding Co. v. Insurance Co., 8 Utah 41.)

Whatever hazard was connected with the work was equally open and obvious to him as to the defendant, if not more so, and if there was anything unsafe about the entire arrangement, the exercise of ordinary care would have revealed it to the plaintiff. In the absence of proof to the contrary, we are bound to assume that he was a man of average intelligence, understanding and knowledge of things about him. He therefore assumed the risk. (Dunn v. Railroad Co., 28 Utah 478; Roth v. Eccles, 28 Utah 456; Christensen v. Railroad, 27 Utah 132; Higgins v. Southern Pacfic Co., 26 Utah 164.)

"When the servant assents to occupy the place prepared for him and incur the dangers to which he will be exposed thereby, having sufficient intelligence and knowledge to enable him to comprehend them, it is not a question whether such place might with reasonable care and by reasonable expense, have been made safe. His assent has dispensed with the performance on the part of the master of the duty to make it so. Having consented to serve in the manner and way in which the business was being conducted, he has no proper ground of complaint even if reasonable precautions have been neglected." (Lovejoy v. Railroad Corporation, 125 Mass. 79, 28 Am. Rep. 206; Baker v. Barber Asphalt Co., 92 F. 117; Gowan v. Harley, 56 F. 973.)

The latter case is very similar in its facts to the case at bar. (Pierce v. Calvin, 82 F. 550; Coal Co. v. Read, 85 F. 914; Tuttle v. Railroad, 122 U.S. 189; Cohn v. McNulta, 147 U.S. 238; Sweeney v. Elevator Co., 101 N.Y. 520; Williams v. Railroad, 116 N.Y. 628; Rice v. Paper Co., 174 N.Y. 385, 95 Am. St. Rep. 582; McMillan v. Spider Lake S. & L. Co., 115 Wis. 332; 95 Am. St. Rep. 947.)

T. D. Johnson and Thos. Maloney for respondent.

RESPONDENT'S POINTS.

Is it not a far departure from the time honored respect for a jury and a jury trial, for this appellant to assert that it is prejudiced in its rights, by having had its cause submitted to a jury for determination? (Doll v. Anderson, 27 Cal. 249; Pitken County Comrs. v. Brown, 31 P. 525.)

This question, however, is no longer an open one in this state. In the case of Wood v. Railroad, 28 Utah 371, the court says: "We are of the opinion that the court below possessed discretionary authority to direct a trial by jury notwithstanding the parties to the suit may have waived the same."

The witness did not testify to an opinion. Wherein can it be said that the question, "Why did the front wheels twist, if you know?" "The testimony is competent upon the same principle that permits evidence showing the strength or force of a blow, the distance at which a sound can be heard or the direction from which it comes, the speed of a horse, the degree of cold or heat, or of light or darkness." (Healey v. Visalia, etc., 36 P. 125, 101 Cal. 585; Ohio, etc., v. Wrap, 30 N.E. 427; Meyers v. Mining Co., 28 Utah 96; Nichols v. Railroad, 25 Utah 240; Black v. Bell Tel. Co., 26 Utah 451; Jensen v. McCormick, 26 Utah 142; Stoll v. Mining Co., 19 Utah 271.)

We maintain under the testimony in this case, the plaintiff was entitled to have the question of assumed risk, negligence and contributory negligence submitted to the jury for determination. (Wood v. Railroad, 28 Utah 351; Pence v. Mining Co., 27 Utah 386; Palmquist v. M. & S. S. Co., 25 Utah 257; Hill v. S. P. Co., 23 Utah 94; Chapman v. S. P. Co., 12 Utah 30; Mayhood v. S. P. Co., 8 Utah 85; Hone v. Mammoth M. Co., 27 Utah 168; Boyle v. Railroad, 25 Utah 420; Mangum v. B. B. & C. M. Co., 15 Utah 534; Reese v. Morgan, etc., 15 Utah 453; Wright v. S. P. Co., 14 Utah 383; Bowers v. Railroad, 4 Utah 215.)

BARTCH, C. J. McCARTY, J., STRAUP, J., concurring.

OPINION

STATEMENT OF FACTS.

This is an action to recover damages for personal injuries which the plaintiff alleges he received through the negligence of the defendant. In the complaint it is alleged, in substance, that on February 19, 1904, the plaintiff, under the employ of the defendant, was engaged, with other employees, in its yard at Ogden City, in unloading certain battery houses from a car; that, to accomplish this work, the employees, by order of the defendant, constructed a temporary platform at the car with large sills or skids, about ten inches square, extending from the platform on an incline to the ground, thence on the ground a certain distance; that the houses were placed, one at a time, upon a low four-wheeled truck, run down the incline and out onto the sills on the ground, the employees guiding and holding the truck and house each time; that the battery houses when so unloaded were placed so close together upon the sills that the tongue of the truck was removed each time after the first one had been unloaded, and the truck guided by employees holding the wheels; that the implements so used were insufficient, unsafe, and dangerous because of the size and weight of the battery houses, and the angle of the incline; and that, while so unloading one of the houses, the truck ran off the sill, upset, and caused the injury of which complaint is made. In the answer all the material allegations of the complaint are denied, and contributory negligence of the plaintiff is alleged.

From the evidence it appears that, when the accident occurred, the plaintiff had been in the employ of the defendant for the period of three months, as a common laborer. His duties were of a general character in the shops and about the yard--moving all kinds of material, and loading and unloading such material into and from cars. At the time of the accident, he and five other employees constituting a labor gang, including a gang foreman who worked with the others, were engaged in unloading battery houses from a flat car. The dimensions of these houses were four and one-half by five feet and eight and one-fourth feet high. To unload them the gang constructed a temporary platform at the car, by means of carpenter sawhorses, blocking, and cross-ties. From this platform two wooden skids, eight by eight or nine inches and fourteen feet long, were placed parallel, so as to form an incline from the platform to the ground, and from the end of the skids, on the ground, were laid sills on which the houses were to be placed. In unloading the houses each one was placed upon a low four-wheeled truck, and then wheeled down the incline and out upon the sills. There were six of these houses, and each time, after the first one was unloaded, in unloading a house the tongue was removed from the truck, so as to get is closer to the house previously unloaded. The plaintiff assisted in constructing the platform and incline, in arranging the appliances, and using the truck, without any objection either from himself or any other workman. The work had thus been going on from between seven and eight o'clock in the morning to between two and three o'clock in the afternoon, when the accident happened, and five of the houses had then been unloaded. Respecting this work, the plaintiff, in the course of his testimony, said "The truck was first brought there after we got the timbers put in place. I do not remember who brought it, but a couple of the gang. I saw the truck run up these skids when the first house was unloaded. I don't know who had hold of the tongue the first time. I remember the crowd of us used the truck. I had no occasion at that time to give any particular attention to the particular thing that each individual was doing. The whole thing was being done by the gang, and we were all co-operating in the work." The witness McClure said: "While this work was being performed, by this gang, in the way described, no one of the gang objected to the tongue being removed, or made any objection, as to the arrangement there, in connection with the removal of these houses. There was not a word said." The unloading of the house, which resulted in the injury, was being done in the same manner as that of the previous ones. It had been wheeled down to the bottom of the incline where it had been stopped, with the front wheels of the truck on the sills and the hind wheels still on the...