Inspiration Consol. Copper Co. v. Lindley

• Decision Date: 31 December 1918
• Docket Number: Civil 1592
• Citation: 20 Ariz. 95,177 P. 24
• Parties: INSPIRATION CONSOLIDATED COPPER COMPANY, a Corporation, Appellant, v. FRED A. LINDLEY, Appellee
• Court: Arizona Supreme Court

177 P. 24

20 Ariz. 95

INSPIRATION CONSOLIDATED COPPER COMPANY, a Corporation, Appellant, v. FRED A. LINDLEY, Appellee

Civil No. 1592

Supreme Court of Arizona

December 31, 1918

APPEAL from a judgment of the Superior Court of the county of Gila. G. W. Shute, Judge. Affirmed.

Mr. E W. Rice, for Appellant.

Messrs Struckmeyer & Jenckes, for Appellee.

OPINION

JOHN WILSON ROSS, J.

This is an action for damages for personal injuries alleged to have been sustained by appellee as the result of the negligence of appellant. Appellee was working as motor helper on one of appellant's underground ore trains, engaged in hauling ore on the 400-foot level of its mine from the Colorado shaft to the tipple, whence it was elevated to the surfact. The train on which appellee was working consisted of ten steel cars of the capacity of five tons each, drawn by a 12-ton compressed air locomotive. Extending across the front end of the locomotive was a bumper, the top of which was of the depth of the seat of a chair. Bolted to the lower front edge of the bumper were iron lugs, which extended forward approximately nine inches. Upon these lugs were fastened a running-board, which extended across the front edge of the bumper from the lower edge thereof. The route traveled by the train between the Colorado shaft and the tipple was along a side drift.

Appellee began to work on this train on the morning of April 25, 1916 the day of the accident. On the morning of the accident, he was directed to work on the train on which he sustained his personal injuries, on account of which this suit is prosecuted. During the forenoon several trips were made from the Colorado shaft and other points in that section of the mine to the tipple, and passed the point where the accident occurred. Appellee was sitting upon the bumper in front of the motor when the accident occurred and the consequent injuries were sustained. The train turned a sharp curve in the drift, when the two front wheels of the four on which it rested were derailed, and appellee's legs were crushed so that the right leg was subsequently amputated.

Appellee, at the beginning of the trial, elected to rely wholly upon the second count, and took a nonsuit as to the first count. In his second count he charged the appellant with negligence in operating the locomotive without a headlight, and with a defective footboard, and in traveling at a dangerous rate of speed, and in piling timbers so near the track that insufficient space was left on the track for the locomotive to pass thereon. It was admitted that no globe was on the headlight on the day of the accident. There was a conflict as to the condition of the footboard, and a conflict as to the speed of the train at the time of the accident.

Appellant interposed as its defense contributory negligence, assumption of risk and a general demurrer. The cause was tried before a jury, resulting in a verdict in favot of the appellee for $22,500, upon which judgment was entered. This appeal is from the final judgment.

We will consider assignment of error No. 1 and assignment of error No. 2, seriatim.

Assignment of error No. 1 is that the court erred in giving the following instructions at the request of appellee:

"The defendant, in its answer, has alleged that the plaintiff's injuries, if any, were caused by the ordinary risks or hazards of the work in which the plaintiff was engaged, and that the plaintiff voluntarily assumed the risk of injury therefrom. Now, I charge you that whether or not he did assume the risk is a question of fact which, under the law of this state, is within your exlusive province to determine. The law is that a servant assumes the ordinary risk incident to the business in which he is engaged, but he does not assumed the extraordinary risk of the negligence he master, or in obedience to the master's order doing work in a dangerous place with unsafe appliances, or in a dangerous manner, unless the danger thereof was so imminent that a man of ordinary prudence would not have incurred the risk of hazard. . . . You are instructed that Lindley assumed the risk of injury from the extraordinary and unusual dangers and hazards of his work if they were open and obvious to and were fully observed, understood, and appreciated by him. If you find that Lindley was injured by an extraordinary risk, danger, or hazard, or by several of them concurring, and that the same was, or were, open and obvious to and was, or were, fully observed, understood and appreciated by him then your verdict must be for the defendant."

The above-quoted instructions, as a whole, when analyzed and separated, cannot be said to be ambiguous, confusing or erroneous. They point out that whether the appellee assumed the risk of his employment is a question of fact, made so by the Constitution of Arizona; that a servant assumes the ordinary risks incident to his employment; that the servant does not assume the extraordinayrisks of th negligence of the master; that the servant doing work in a dangerous place with unsafe appliances, or in a dangerous manner in obedience to the master's order, does not assume the risk of the negligence of the master, unless the danger thereof was so imminent that a man of ordinary prudence would not have incurred the risk or hazard; that appellee assumed the risk of injury from the extraordinary and unusual dangers and hazards of his work if they were open and obvious to and were fully observed, understood and appreciated by him; that if the jury find that the appellee was injured by an extraordinary risk, danger or hazard, or by several of them concurring, and that the same was, or...