Hill v. Southern Pac. Co.

• Decision Date: 05 January 1901
• Citation: 23 Utah 94,63 P. 814
• Court: Utah Supreme Court
• Parties: HENRY A. HILL, Jr., an Infant, by JOHN A. HILL, his guardian ad litem, Respondent, v. SOUTHERN PACIFIC COMPANY, a Corporation, Appellant

63 P. 814

23 Utah 94

HENRY A. HILL, Jr., an Infant, by JOHN A. HILL, his guardian ad litem, Respondent, v. SOUTHERN PACIFIC COMPANY, a Corporation, Appellant

Supreme Court of Utah

January 5, 1901

Appeal from the Second District Court, Weber County.--Hon. H. H Rolapp, Judge.

Action to recover damages for personal injuries alleged to have been caused through the negligence of defendant company. From a judgment for plaintiff, defendant appealed.

AFFIRMED.

Messrs Marshall, Royle & Hempstead for appellant.

It is an elementary legal proposition that it is one of the risks of the employment, that with the ordinary implements and tools used in the performance of his labor, the servant or employee assumes the risk, unless it is some hidden defect or complicated machinery with which the master should be familiar and the servant ignorant. Bailey's Master and Servant, p. 209; Marsh v. Chickering, 101 N.Y. 396; Gowen v. Hanley, 56 F. 974; Bordon v. Mail Co., 74 N.W. 91; La Pieere v. Ry. Co., 58 N.W 60; Kinney v. Corbin, 132 Pa. St. 341; Miller v. R. R. Co., 47 N.Y.S. 285; Wacksmith v. Shaw Electric Crane Co., 76 N.W. 498; 18 A. and E. R. R. Cases, 209; 15 A. and E. R. R. Cases, 209; 9 S.E. 1049; 8 S.E. 629; 83 Ga. 70; 47 N.Y.S. 285; 85 Tex. 16.

Messrs. Zane & Rogers, and W. R. White, Esq., for respondent.

The Constitution provided that "In equity cases the appeal may be on questions of both law and fact; in cases at law the appeal shall be on questions of law alone." Sec. 9, art. 8, Constitution Utah; Nelson v. S. P. Co., 15 Utah 325; Harrington v. Eureka Hill Min. Co., 17 Utah 300.

In determining whether plaintiff acted with due care and as to whether he was guilty of contributory negligence, the law required the jury to take into consideration the fact that he was young and without experience in the work in which he was engaged. For that reason it is probable he did not appreciate the danger of working under cars. He must be judged from the standpoint of his age, his inexperience, his lack of knowledge and his capacity. Anderson v. The Daly Mining Co., 15 Utah 22; Wroth v. N. P. L. Co., 18 Or. 205, 211 and 213; Hungerford v. Chicago M. & St. Paul R. R. Co., 41 Minn. 444; Louisville, St. Albany & Chicago Ry. Co. v. Frawley, 110 Ind. 18; 1 Shearman & Redfield on the Law of Negligence (5 Ed.), secs. 219 and 219a.

The master is bound to observe all the care which prudence and the exigencies of the situation require in providing the servant with machinery or other instrumentalities adequately safe for use by the latter, as well as to exercise all reasonable care and provide him a reasonably safe place in which to work, and if the master fail in either respect he is responsible to the servant for injury in consequence of said negligence. Hough v. Railroad Co., 100 U.S. 213, 217; Steele Co. v. Schymanowski, 162 Ill. 455; 1 Shearman & Redfield on the Law of Negligence, sec. 194 and 194a; Northern Pacific R. R. Co. v. Herbert, 116 U.S. 642.

There does not appear to be any evidence that plaintiff was guilty of any negligence contributing to his injury. If it were conceded there was some evidence of his negligence, certainly there is a good deal tending to prove he was not, and that being the case the finding of the jury must be regarded as final. Dwyer v. Salt Lake City, 19 Utah 521; Frank v. Mining Co., 19 Utah 35; Dryburg v. Mining & Milling Co., 18 Utah 410; Mangum v. Bullion Beck Mining Co., 15 Utah 534; Anderson v. The Daly Mining Co., 15 Utah 22; Harrington v. Eureka Hill Mining Co., 17 Utah 300; Nelson v. S. P. Co., 15 Utah 325.

If the negligence of defendant and plaintiff's fellow servants together caused the injury to plaintiff, the defendant was liable. Wright v. S. P. Co., 14 Utah 383 (398); Shearman & Redfield on the Law of Negligence, secs. 187-188; Railway Co. v. Cummings, 106 U.S. 700.

BARTCH, C. J., delivered the opinion of the court. Miner and Baskin, JJ., concur.

OPINION

BARTCH, C. J.

STATEMENT OF FACTS.

This is a suit to recover damages for personal injuries alleged to have been caused through the negligence of the defendant company.

It was alleged in the complaint, inter alia, that Henry A. Hill, Jr., was on August 4, 1898, in the employ of defendant as a car-repairer, and on that day was required to and did go under a box car on the company's railroad track for the purpose of repairing the car; that the car was standing on four wooden supports, known as candlesticks, its trucks having been removed; that the candlesticks "had become old, weakened, defective, broken and worn out, and were insufficient, inadequate and unsafe to be used" for the purpose of supporting the car; that this was known to the defendant; that while said Hill was so under the car for the purpose of making repairs, the car, because of the broken, defective and insufficient condition of the candlesticks, fell upon him and caused the injuries for which he seeks redress. The answer denies all the allegations of the complaint, referring in any way to any defective condition, or the inadequacy or insufficiency of the candlesticks.

From the evidence, it appears that Henry A. Hill, Jr., the complainant, at the time of the accident, was a minor under nineteen years of age; that he was employed as car repairer, by the company, on August 3, 1898; that he was inexperienced and had never seen or used candlesticks previous to this employment; that an empty box car, weighing, without trucks, about ten or twelve thousand pounds, was placed on the repair tracks in the company's yard to be repaired; that certain employees of the company removed the trucks and placed four candlesticks under the car, one under each corner; that on account of the difference in height of the candlesticks or unevenness of the floor on which they stood, blocks were placed on top of two of the candlesticks; that the blocks and candlesticks were selected by the workmen; that there were about twenty-five to thirty candlesticks to select from; that on August 4, 1898, the plaintiff, with three other employees, began to repair the car; that he went under it to tighten some bolts with a wrench; that while he was so at work screwing up a nut, the car fell and injured him; and that all the candlesticks but one fell over with the car and that one of them was broken. Just what caused the candlestick to break, whether the weight of the car, or the falling of it thereon, does not clearly appear. Nor is the evidence harmonious as to what was the immediate cause of the car falling. There is evidence tending to show that the candlesticks, if properly placed under the car, were sufficient to support it, and there is evidence tending to show that the candlesticks were old, worn and unsafe, and that occasionally such candlesticks would break, one of the witnesses stating that he had several times seen the same kind break.

The witness Sharp testified that just before the car fell, the plaintiff was jerking, and that he told him to "pull steady on the wrench," and then told him to "look out, the car is falling."

The plaintiff testified that he did not hear Sharp's warnings; that he had no difficulty at his work; that the nuts all worked perfectly easy; and that all he did was to screw them up.

The witness Sharp also stated that the plaintiff assisted in placing the candlesticks under the car, while the plaintiff testified that he "had nothing to do with putting them under the car," and that he "never touched them."

It further appears that each morning all the workmen in the shops, including the complainant, were given a time card on which were printed the words: "Examine personally scaffolding, tackle and all other appliances before trusting them," but the complainant stated that he never saw these words on his card. Otherwise there appears to be nothing to show that he was notified or cautioned about any danger before entering upon the duties of his employment. At the trial, the jury returned a verdict in favor of the plaintiff in the sum of $ 7,150, and judgment was entered accordingly. Thereupon the defendant appealed.

A statement of the case as above having been made, BARTCH, C. J., delivered the opinion of the court:

The appellant, in the first instance, insists that the evidence fails to show, in accordance with the allegations of the complaint, that the candlesticks, which supported the car under which the plaintiff was injured, were defective insufficient or unsafe, for the purpose for which they were being used, and that,...