Johnson v. Union Pac. Coal Co.

• Decision Date: 28 May 1904
• Docket Number: 1510
• Citation: 76 P. 1089,28 Utah 46
• Court: Utah Supreme Court
• Parties: AUGUST JOHNSON, Respondent, v. THE UNION PACIFIC COAL COMPANY, a Corporation, Appellant

76 P. 1089

28 Utah 46

AUGUST JOHNSON, Respondent, v. THE UNION PACIFIC COAL COMPANY, a Corporation, Appellant

No. 1510

Supreme Court of Utah

May 28, 1904

Appeal from the Third District Court, Summit County.--Hon. C. W Morse, Judge.

Action to recover damages for personal injuries alleged to have been received because of the negligence of the defendant. From a judgment in favor of the plaintiff, the defendant appealed.

AFFIRMED.

Le Grand Young, Esq., and W. H. Hatteroth, Esq., for appellant.

Lindsay R. Rogers, Esq., for respondent; M. E. Wilson, Esq., and John A. Street, Esq., of counsel.

BASKIN C. J. McCARTY, J., concurs. BARTCH, J., concurs in the judgment.

OPINION

BASKIN, C. J.

--It is alleged, in substance, in the complaint, that the plaintiff as an employee of the defendant, was, on the fifth of December, 1901, engaged in working in defendant's coal mine, in the State of Wyoming, at the bottom of a shaft in said mine, which extended from the surface, on an incline of twenty-five degrees, a distance of about eight hundred feet; that on said day the defendant was, and for a long time prior thereto had been, engaged in constructing a railway track down said shaft; that in doing so the iron rails necessary to the construction of said track were loaded upon the top of an ordinary pit car, and let down to the place where needed by means of a wire cable operated by machinery at the surface; that by reason of the weight of the rails, and the downward slope of said shaft and the jerking of the cable, the letting down of the rails was extremely dangerous to the plaintiff, working at the bottom of the shaft, by reason whereof it became and was the duty of the defendant to securely fasten the rails to the top of the car by means of ropes, cables, or otherwise, and carefully work and operate the machinery, and to warn the plaintiff at the bottom of the shaft before letting down the pit car loaded with rails, and that the defendant had full notice of such risks, dangers, and hazards, and was well aware of its said duties; that on said day said defendant, in violation of its duty to the said plaintiff, negligently and carelessly, and without any notice or warning to the plaintiff, used said pit car in letting down said rails to the bottom of the shaft, and carelessly and negligently failed and omitted to fasten or secure said rails to the top of said car, but left the same loose and unfastened upon the top of said car, whereby and by consequence of which one of the said rails, being loose and unfastened, as aforesaid, on the top of said car, slipped from and over the end of said car, and fell down the slope of the shaft to the bottom thereof, where it struck the said plaintiff and injured him. In addition to the foregoing, it is alleged in the second count of the complaint "that it became and was the duty of the defendant to make, prescribe, promulgate, and enforce rules among its said employees who were engaged in letting down said rails to the bottom of the shaft, requiring that said rails were by said employees to be securely fastened or tied to said pit or trip car by and with the said cables, ropes, or other effective appliances before said pit car loaded with said rails was started down the slope of the shaft. It is further, in substance, alleged that the defendant negligently failed and omitted to perform said duties. A verdict and judgment were entered in favor of the plaintiff.

At the close of the plaintiff's evidence the defendant moved for a nonsuit, which was denied. Defendant also requested the court to instruct the jury to return a verdict in favor of the defendant, which was also denied. The denial of each of these motions is assigned as error.

Without stating the evidence in detail, as it is very voluminous, it is sufficient to say that, after a careful consideration of the whole of it, we are fully satisfied that it, as well as the evidence of the plaintiff in chief, standing alone, is such as required the case to be submitted to the jury, and that, therefore, the trial court did not err in denying either the motion for the nonsuit or the request to instruct the jury to find a verdict for the defendant.

2. The refusal of the court to give the following instructions, requested by the defendant, is also assigned as error, viz.: "The court further charges you, in the matter of what is a reasonably safe way to do a thing or perform an act, may be defined to be the way and manner that people engaged in the same business have adopted for doing like work. If you find from the evidence that the defendant adopted the ordinary and usual way of lowering the rails into its mines, which was the way that was adopted generally by mine owners in like cases, then in that event it would not be deemed carelessness or negligence on defendant's part to lower rails into the mine in this manner; and, if an accident occurred thereby, it would be an accident incident to the business, and one for which the defendant is not liable." It is well settled that the master is required to exercise "reasonable or ordinary" care for safety of his servants, while performing their duties. Reasonable care and ordinary care, which in law have the same meaning, "is the care which reasonable and prudent men use under like circumstances" (Cayzer v. Taylor, 10 Gray 274, 69 Am. Dec. 317), and must be measured by the character, risk, and exposure of the business; and the degree required is higher where life or limb is endangered. As stated by Mr. Justice Field in the Nitro-Glycerine Case, 15 Wall. 524-538, 21 L.Ed. 206: "The measure of care against accident, which one must take to avoid responsibility, is that which a person of ordinary prudence and caution would use if his own interest were affected and the whole risk were his own." In the case of Boyle v. Union P. R. Co., 25 Utah 420, 430, 71 P. 988, 991, which the appellant has cited as supporting its contention, Mr. Justice McCARTY, speaking for this court, correctly stated the rule upon this subject as follows: "The rule has become elementary that it is a duty the master owes to his servant to use reasonable care and prudence for his safety by providing the machinery in use with such appliances as will enable the servant, with ordinary and reasonable care on his part, to perform the duties required of him without danger, except as may be reasonably incident to the business or employment engaged in. That is, the master is required to provide the same kind of appliances, or appliances equally as safe, as those in general use by men of ordinary prudence who are engaged in the same kind of business. Bailey's Mast. Liab., pp. 15, 16, and cases cited; Shearman & Redfield, Neg., sec. 194; Pool v. Southern P. Co., 20 Utah 210, 58 P. 326. It is not only the master's duty to provide his servants with reasonably safe appliances, but it is also his duty to use ordinary care in looking after, inspecting, and keeping them in repair. Shearman & Redfield, Neg., sec. 195; Bailey's Mast. Liab., p. 101." The same rule is stated in Titus v. Railroad Co., 136 Pa. 618, 626, 20 A. 517, 518, 20 Am. St. 944, which the appellant also cited as follows: "No man is held by law to a higher degree of skill than the fair average of his profession or trade, and the standard of due care is the conduct of the average prudent man." In Dickert v. Salt Lake City Ry. Co., 20 Utah 394, 59 P. 95, this court held that: "However usual the method of a common carrier, such as a street railway company, in starting its cars, if that method is dangerous, and its use violative of the high degree of care which the carrier is required to observe regarding its passengers, and in the use of that method a passenger is injured, the carrier is liable." Reasonable or ordinary care cannot be determined abstractly, for what would be such care in one case, might be gross negligence in another, and therefore whether such care has been exercised depends upon, and can only be determined by, the facts in each particular case, and is generally a question of fact for the jury to determine. Under the well-settled rule upon the subject before mentioned, the instructions so as aforesaid requested are erroneous in this: that they are not limited in their application to the reasonable or ordinary manner in which similar work as that in which the defendant was engaged is generally performed, under similar circumstances, by reasonable and prudent persons engaged in the same occupation. As there was no proof that the conditions under which the work of the defendant was performed were the same as those under which reasonable and prudent persons engaged in the same occupation as the defendant generally perform their work, the instructions requested were not proper for that reason.

3. Defendant's attorney asked M. J. Blake, a witness for defendant, "What was the general method of letting down rails in those mines you say you have worked in, in the State of Wyoming, prior to the time of this accident?" To this question counsel for plaintiff objected on the ground that it was incompetent, and did not include conditions existing at the time and place of the accident. This and several objections of the same kind were sustained, and the ruling of the court is assigned as error. It follows from what has been said under the second head of this opinion that these objections were properly sustained.

4. The refusal of the court to give each of the following instructions, requested by the defendant, is assigned as error:

"(5) You are instructed that when the plaintiff engaged in the employment of the defendant for compensation he took upon himself the risks and perils ordinarily incident to the performance of the service for which he was employed. That one of the risks...