Harrison v. Denver & RIO Grande Western Railway Co.

• Decision Date: 03 October 1891
• Citation: 27 P. 728,7 Utah 523
• Court: Utah Supreme Court
• Parties: GEORGE HARRISON, RESPONDENT, v. DENVER AND RIO GRANDE WESTERN RAILWAY COMPANY, APPELLANT

27 P. 728

7 Utah 523

GEORGE HARRISON, RESPONDENT, v. DENVER AND RIO GRANDE WESTERN RAILWAY COMPANY, APPELLANT

Supreme Court of Utah

October 3, 1891

APPEAL from a judgment of the district court of the third district and from an order refusing a new trial. The opinion states the facts.

Reversed.

Messrs Bennett, Marshall and Bradley, for the appellant.

Mr Joseph L. Rawlins, for the respondent.

BLACKBURN J. ANDERSON, J., and MINER, J., concurred.

OPINION

BLACKBURN, J.:

This suit was brought by respondent for personal injuries received while in the employ of the defendant company. The evidence shows that he was engaged as a helper in the machine-shop, and had been for several years. His foreman directed him to assist in taking down some shafting in the blacksmith shop and adjoining building. He did not work in that building. This work was to be done after regular working hours. He said he was tired and did not want to work extra hours, but he was urged by his foreman, and consented. It was dark when the work was to be done, and the negligence charged on the company which caused the injury was the want of sufficient light to handle the machinery and do the work with safety and success. It is also claimed that the tackle used in lowering the shafting was insufficient for the purpose. The plaintiff was standing on a platform about fourteen feet from the floor, and was pushing the shafting so that it would miss the hangings, and the tackle slipped off the other end, and the end he was at was thrown up, and injured him severely, so that up to the commencement of the trial he was unable to do full work, and the testimony was conflicting as to whether his injuries were permanent. The jury found for the plaintiff, and assessed his damages at $ 4,000. Motion was made for a new trial, and overruled, and this appeal was taken.

1. It is contended by defendant that the evidence was insufficient to sustain the judgment. It clearly shows that the lights were not sufficient to enable the work to be done with success and safety. A witness for the defendant says the accident would probably not have happened if there had been sufficient light to do the work. The lights furnished were individual lamps, and not enough of them. All these questions were fairly and fully submitted to the jury. The instructions given were justified by the testimony, and stated the law correctly, and those refused ought to have been refused. Therefore this contention is not well taken.

2. The defendant insists that the plaintiff knew the lights were insufficient before he undertook to do the work, and it was contributory negligence on his part to proceed with the work when it was extra hazardous. The court instructed the jury on that subject as follows: "It is the primary duty of the servant to obey the orders of his master, within the scope of his employment; and when the work ordered to be done is not obviously dangerous, or of such a nature that the servant can see that it cannot be performed with safety, or about which there can be a difference of opinion in the minds of reasonable and prudent persons, then the servant is not, at the peril of being discharged, bound to set up his judgment against that of his master. The servant has a right to rely upon it that the master has taken reasonable precaution for his safety, under such circumstances that the work may be done without extra hazard or peril to himself." We think this instruction states the law correctly. An employe is not usually in condition to abandon his employment for slight reason; for out of employment means often out of bread and meat for his family, and he will take unusual and hazardous risks to keep his place, and no employer ought to put him to the choice of peril or loss of employment.

3. The defendant contends the damages are excessive. The jury was properly instructed in the measure of damages, and the evidence as to the extent and permanency of the injury was somewhat conflicting. The estimation of damages is peculiarly within the province of the jury, and we cannot say that it was influenced by prejudice or passion in fixing the damages at the amount it did.

4. Another contention of appellant is that improper testimony was allowed to go to the jury,...