Guitron v. Oregon Short Line R. Co.

• Decision Date: 30 July 1923
• Docket Number: 3962
• Citation: 217 P. 971,62 Utah 76
• Court: Utah Supreme Court
• Parties: GUITRON v. OREGON SHORT LINE R. CO

217 P. 971

62 Utah 76

GUITRON v. OREGON SHORT LINE R. CO

No. 3962

Supreme Court of Utah

July 30, 1923

Appeal from District Court, Third District, Salt Lake County; A. R Barnes, Judge.

Suit by Crescanciano Guitron against the Oregon Short Line Railroad Company, a corporation. Judgment for plaintiff, and defendant appeals.

REVERSED, and new trial granted.

Geo. H Smith, R. B. Porter, and J. V. Lyle, all of Salt Lake City for appellant.

Hancock & Barnes, of Salt Lake City, for respondent.

WEBER, C. J. THURMAN and CHERRY, JJ., concur. GIDEON, J., concurs in the result. FRICK, J., did not participate.

OPINION

WEBER, C. J.

As an employee of defendant, plaintiff sued for damages he sustained by the loss of the sight of his left eye; the injury being due to defendant's alleged negligence. From the judgment in favor of plaintiff this appeal is taken.

It is alleged in the complaint that the defendant is a common carrier in the transportation of freight and passengers from one state to another for hire, and that plaintiff was injured while working on the main track of defendant which was used in the transportation of interstate commerce; that on December 10, 1920, plaintiff was employed by defendant as a section hand, and that day worked at Minidoka, Idaho. It is averred in the complaint that among the duties of plaintiff was that of assisting in the cutting of rails under the direction of a section foreman; that on December 10, 1920, a Japanese foreman ordered plaintiff together with other section hands to engage in cutting a rail in two, said rail being a portion of the main track; that the section foreman instructed plaintiff and other men with whom he was working to take turns in hammering a certain chisel held by another workman against the rail, and that when one particular workman had taken his turn at hammering he was to sit near at hand and wait his next turn; that complying with the instructions of the section foreman, the plaintiff assisted in the hammering of said chisel. Plaintiff had finished his turn and in accordance with the instructions of the foreman had taken a position near by, and at the time of the accident was sitting near the chisel waiting the further progress of the work. While plaintiff was thus sitting near said chisel, in compliance with the instructions of the foreman, a blow was given to the chisel by another workman with a hammer, and the chisel being of too hard a texture, or the rail being too hard, a chip of steel flew from either the chisel or the rail directly into the left eye of plaintiff, destroying its sight and so injuring it that the eye had to be removed. The complaint sets out in detail the different particulars in which it is claimed the defendant was negligent.

To these alleged acts of negligence as set forth in the complaint we shall refer hereinafter.

Admitting its corporate capacity, and that it is a common carrier of passengers and freight in the states of Utah, Idaho, and Montana, and that plaintiff was in its employ as a section laborer, the defendant denies all the other allegations of the complaint and pleads affirmatively: (1) Contributory negligence; (2) assumption of risk; (3) that prior to the commencement of this action plaintiff, in consideration of $ 200 paid to him by the defendant, made, executed, and delivered to defendant a written release and discharged it from all claims of plaintiff against the defendant set forth in the complaint.

In reply, plaintiff alleged that he was a Mexican, unable to speak or understand English, and that he did not understand that he was signing a release, and it was not explained to him, and he at no time understood its import, and if the paper he signed was in fact a release of his said claim it was obtained by defendant fraudulently. The greater portion of the trial was devoted to the last defense.

In the argument before this court it is claimed that respondent executed the release and that no evidence was offered tending to avoid or vitiate it.

Respondent is a Mexican. He testified through an interpreter and had no knowledge of English. On the witness stand he claimed that the release was never interpreted to him; that he did not comprehend its terms nor assent to them. It is not necessary to go into details of his testimony nor to review appellant's evidence on that subject. Under all the circumstances and the facts as they appear in the record, the issue relating to the validity of the release was a question of fact for determination by the jury.

The grounds of negligence alleged by plaintiff in his complaint were as follows:

"1. In furnishing plaintiff and the other workmen with a chisel of too hard a composition for safe usage, which fact was unknown to plaintiff."

The record contains not even a scintilla of evidence in support of this claim.

"2. In failing to inspect or cause to have inspected said chisel when defendant knew or by the exercise of reasonable care could have known that said chisel was of too hard a texture and dangerous for use."

The record is wholly devoid of any testimony regarding the texture of the chisel, and the second ground of negligence is therefore without support in the record.

"3. In requiring, directing, and ordering said plaintiff to perform his work in an unsafe place, to wit, in a place a few feet from said hammering, whereas defendant knew or could have known by the exercise of reasonable care that the order so given was a negligent one under the circumstances and liable to result in injury to either plaintiff or some of the other workmen sitting close by."

As to this ground of negligence, the only evidence is found in the testimony of plaintiff in which he said:

"The boss told me take my position on top of the rail, holding it steady in order that it should not break too soon leaving a rough edge. * * * I did what he told me to do, and standing on the rail somewhat directing the work of the young man who had hold of the hammer and was hammering, and observing what he was doing, and a piece of something hit me in the head."

Plaintiff was standing some four or five feet from the workman who was doing the hammering. This is all the evidence the record contains in support of the third proposition.

"4. In requiring plaintiff and the other workmen to chisel a rail of such a hard texture that chips were liable to flow therefrom, which fact could have been known or was known by the defendant had defendant inspected said rail prior to said cutting."

This ground of alleged negligence is also wholly without support in the evidence.

"5. In subjecting the plaintiff to unnecessary, needless, and unreasonable dangers."

This generality is simply a conclusion and is without foundation in the evidence.

"6. In failing to warn plaintiff of the existence of of the danger that chips would fly from either said chisel or said rail."

The evidence shows nothing on this subject either way except that plaintiff had been instructed in his work and understood it.

"7. In using an improper and unsafe system of cutting said rail, when the same could have been accomplished by the exercise of reasonable care without any danger whatsoever to the plaintiff or his associates."

There is no evidence tending to support this last averment and no facts from which any inference can be drawn in its support.

After plaintiff had introduced his testimony and rested, the defendant moved for a nonsuit on the ground, among others, that plaintiff had failed to prove defendant negligent in any respect alleged in his complaint. This motion should have been granted. The case, however, was tried on what seems to have been a ground of negligence not set forth in the complaint, viz., that defendant furnished plaintiff and the other workmen a chisel that was defective and in a bad condition.

It is shown in the evidence that on the day mentioned, while respondent was helping to cut a rail at Minidoka, Idaho, he was hit in the eye...