Grasty v. Sabin

• Decision Date: 17 October 1927
• Docket Number: Civil 2589
• Citation: 32 Ariz. 463,259 P. 1049
• Parties: E. C. GRASTY and R. S. GRASTY, Copartners, Doing Business Under the Firm Name of E. C. GRASTY & BRO., Appellants, v. BYRON SABIN, Appellee
• Court: Arizona Supreme Court

259 P. 1049

32 Ariz. 463

E. C. GRASTY and R. S. GRASTY, Copartners, Doing Business Under the Firm Name of E. C. GRASTY & BRO., Appellants, v. BYRON SABIN, Appellee

Civil No. 2589

Supreme Court of Arizona

October 17, 1927

APPEAL from a judgment of the Superior Court of the County of Gila. C. C. Faires, Judge. Affirmed.

Messrs Armstrong, Lewis & Kramer, for Appellants.

Messrs Cox, Moore & Janson, for Appellee.

OPINION

ROSS, C. J.

This is an action by Byron Sabin against E. C. Grasty and R. S Grasty, partners, brought under the Employers' Liability Law (Civ. Code 1913, pars. 3153-3162, as amended by Laws 1919, chap. 15) for personal injuries alleged to have been caused by an accident due to the condition of plaintiff's occupation. The defendant interposed in his answer to the complaint the defense that plaintiff's injury was caused by his sole negligence. The trial was before a jury and resulted in a verdict and judgment for plaintiff in the sum of $2,350. Upon defendants' motion, the court ordered a new trial, on account of the verdict being excessive, unless plaintiff consented to a remission of $1,000 from the judgment. We conclude consent was given plaintiff (although the record is silent thereon), since no new trial was granted. The appeal is from the judgment.

The material and necessary facts to an understanding of the case are substantially as follows: In April, 1924, plaintiff entered the employment of the defendants, who were operating in the town of Winkleman, Gila county, a garage, an ice plant, a light plant, and a water plant, as a mechanic. His duties were largely at the garage, but as occasion required he performed other duties in connection with the other plants of defendants. Among his "other duties" was to help look after the pump used in the water plant. He assisted in keeping the pump and its connections in repair and running order and when necessary would turn on the power for pumping. The pump machinery was located in a small concrete building a short distance from the garage, and consisted of a five-horsepower electric motor, the pump, and connecting parts. In the pump were two wheels, one about eighteen inches in diameter fitted with cogs, and the other from four to six inches in diameter also fitted with cogs, and when the pump was operating the cogs of the smaller wheel meshed in the cogs of the larger. There was a guard or shield that covered the gear mesh, held in place by cap screws. It became necessary to take up the bearings and to put into the pump new packing and do some other repairs to it, and on October 21st, 1925, Arthur L. Richardson, also an employee of defendants, and plaintiff, undertook to do the necessary work. They removed the guard and worked at the job continuously from 8 A.M., except meal hours, until 11:15 at night. Before leaving for home they started the pump without replacing the guard. Plaintiff testified that R. S. Grasty was present at the time and when the omission was suggested said that "we might as well leave it off until we finished the work; the place was locked up, and nobody's kids will get in and get tangled up with the machinery." R. S. Grasty visited the pump-house during the day and at night and saw what was being done, but denies giving the instructions about leaving the guard off, or that he was present when it was mentioned. Richardson testified that the question of replacing the guard was mentioned, but whether Grasty was present or gave any instructions he could not say; that he knew Grasty "was in the car before we (meaning himself and plaintiff) were."

The work of repairing the pump not having been completed, the guard remained off, the plaintiff and other employees of defendants attending and caring for the pump as usual. At 1 o'clock P.M. on October the 29th, plaintiff went from his home directly to the pump-house and upon his arrival turned on the power and while the pump was operating started to grease it. Just as he was in the act of applying the lubricant to the gears his foot slipped and he fell. In an effort to catch himself and break the fall the first and second fingers of his left hand came into contact with the gears and were so badly crushed that they had to be amputated to the first joint. A leakage of water and grease from the pump on to the floor made it slippery, and it was this condition of the floor that caused plaintiff to lose his footing.

The defendants' first assignment is that the court erred in not instructing the jury on contributory negligence. The Employers' Liability Law is a compensation law and the right of action therein provided is not governed by the rules applicable to common-law actions for damages, or to that action as modified by statute. Arizona Copper Company v. Hammer, 250 U.S. 400, 6 A.L.R. 1537 63 L.Ed. 1058 39 S.Ct. 553. The negligence of the employer is not involved, neither is assumed risk, and contributory negligence is no defense to the action. "The only risk or hazard the employee assumes is his own negligence." Consolidated Arizona Smelting Co. v. Egich, 22 Ariz. 543, 199 P. 132. The statute, and the Constitution (par. 3154, Civ. Code 1913, a...