Mellor v. Ten Sleep Cattle Co.
| Decision Date | 26 May 1976 |
| Docket Number | No. 4557,4557 |
| Citation | 550 P.2d 500 |
| Parties | Leland N. MELLOR, Appellant (one of Plaintiffs below) (Katherine R. Bybee and Workmen's Compensation Department ex rel. Wyoming State Treasurer, other plaintiffs below), v. TEN SLEEP CATTLE COMPANY, Appellee (Defendant below). |
| Court | Wyoming Supreme Court |
J. T. Langdon, Cheyenne, Stephen E. Cole, Worland, and W. Eugene Hansen and G. Richard Hill, Salt Lake City, Utah, for appellant.
Elmer J. Scott, Scott & Shelledy, Worland, for appellee.
Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.
This is a negligence case and the only two issues, as stated in appellant's brief, are as follows:
'II. The trial court's holding that plaintiff was contributorily negligent and/or assumed the risk is not supported by the evidence and is contrary to law. " 1
The plaintiff, Leland N. Mellor, was a ranch workman employed by the defendant Cattle Company on the day he was injured. Mr. Mark Carter, the president and general manager of the Company, asked the plaintiff to assist in removing a cabinet from the wall of a building which was, together with the cabinet, to be moved on skids to another location. The plaintiff was further requested to assist Carter and his son in lifting the cabinet from the ground inside the building to an upright position so that it could once again be placed against the wall.
The three men succeeded in lifting the cabinet from the ground to an upright position and they were attempting to move it back against the wall where it had originally been fastened, during the course of which operation the injury to the plaintiff occurred. These attempts were made by walking the object because the cabinet was heavy and could only be moved a short distance at a time. While the plaintiff and other two were taking a short break of five to ten minutes during these moving operations, the cabinet suddenly, and without warning, fell beckward, trapping the plaintiff beneath it in such a way that he suffered serious and permanent personal injury.
Since the plaintiff-appellant had been working with the Carters in moving the cabinet, it is clear that he knew how heavy is was and was familiar with all of its other physical characteristics. The evidence shows that he was an experienced workman who was accustomed to this kind of general handyman employment.
When the cabinet fell, injuring the plaintiff, it had been standing for a period described as from five to ten minutes in the upright position that the Carters and the plaintiff had placed it. The plaintiff contends that it was caused to fall as a result of the younger Carter leaning against it. The validity of this position will be taken up in the course of the opinion.
It is well settled that on appeal this court must assume that the evidence in favor of the successful party is true, leaving out of consideration entirely the evidence of the The burden of proving negligence of the employer is upon the plaintiff-employee. If that is not accomplished, then the lower court's decision must stand. 2
unsuccessful party in conflict therewith and give to the evidence of the successful party every favorable inference which may reasonably and fairly be drawn from it. Oedekoven v. Oedekoven, Wyo., 538 P.2d 1292, 1297; Younglove v. Graham and Hill, Wyo., 526 P.2d 689, 691; Piner v. Piner, Wyo., 511 P.2d 94, 95; Producers Livestock Marketing Ass'n v. Parker, Wyo., 509 P.2d 345, 347; Berry Refining Company v. Pinsky, Wyo., 443 P.2d 521, 523; Trail Motors v. First National Bank of Laramie, 76 Wyo. 152, 301 P.2d 775, 780.
The burden of proving contributory negligence is on the defendant-employer 3 , but this burden becomes activated only where the plaintiff has proven negligence in the first instance-and there is no conflict of fact on that issue.
If contributory negligence becomes determinative and there is substantial proof thereof, the plaintiff must fail in his appeal efforts. If there is a conflict of evidence on the question of contributory negligence, he must also fail because, upon appeal the evidence of the successful party must be taken as true, leaving out of consideration the evidence of the unsuccessful party.
The plaintiff-appellant in a personal injury case may, therefore, expect to be successful upon appeal only where
(a) the proof of defendant's negligence is made and there is no issue of fact on the question; and
(b) there is either such insufficient proof or no proof of plaintiff's wrong-doing as would, in law, constitute assumption of the risk and/or contributory negligence.
We examine this appeal with the above rules of appellate law in mind.
This case was tried to a judge without a jury. The court found:
(a) The defendant Cattle Company was not negligent; and
(b) The plaintiff was contributorily negligent and/or assumed the risk inherent in the moving operation.
We affirme.
The first point called up for our opinion is defined by the appellant as follows:
'The trial court's holding that defendant Ten Sleep Cattle Company was not negligent is not supported by the evidence.'
In support of this contention the appellant argues that the employer violated his duty of care to the employee by failing to furnish him a safe place to work, the result of which caused injury.
It is the duty of the employer to furnish the employee a safe place to work 4 and that duty of care must be reasonable in view of the work to be performed and the dangers incident to the employer. 5
We said in Engen, supra:
Id. at 20 Wyo. 126, 121 P. 874.
The master is not, however, liable for a failure to furnish a safe place to work if the complaint centers upon a danger which the employer does not know of and concerning which he is not chargeable with knowledge, or which arises in the progress of the work and constitutes part of its details and risks. We said as much in Engen, supra, at 20 Wyo. 126, 121 P. 874:
'. . . The duty of the employer to guard his workmen against unnecessary and unreasonable risks extends, not only to those that are known to him, but also to such as a reasonably prudent man, in the exercise of ordinary diligence, would know or discover, having regard to the danger to be avoided . . .' (Citing 4 Thomp.Com. on Neg. § 3783) (Emphasis supplied)
In the instant matter, the cabinet being moved was the thing that caused the harm. It really was not the place where the plaintiff was required to work that was the cause of the injury.
Be that as it may-the danger and the cause arose during the progress of the work and constituted a part of its details and risks and thus is an exception to the safe-place-to-work requirements. (Engen, supra)
Another factor requires mention and is one which, we think, prevents this appeal from being rescued by the safe-place-to-work theory. There is no evidence in this record to show what caused the cabinet to fall. Negligence cannot be presumed from the mere happening of the accident. Elite Cleaners and Tailors, Inc. v. Gentry, Wyo., 510 P.2d 784, 788. It stood there for from five to ten minutes before falling, and when it did, it fell without warning. It is contended that the younger Carter was leaning on the cabinet and that this was the cause of its fall. This was rank speculation. There is no proof of this, and to just say it-without proof-does not constitute a causative fact to which we will assign credibility. There was insufficient proof to establish that the younger Carter's leaning on it was the cause. 6 Therefore, the senior Carter, plaintiff's employer, could hardly be held to have known of the danger.
If we, in hindsight, do not know what caused the cabinet to fall-how can Carter, with foresight, be held to have been able to anticipate what the cabinet would do?
We cannot say that the defendant-employer was negligent as a matter of law for not employing more men and having safety devices on the job. This we would have to do if we were to overrule the fact-finding trial court on this issue.
We recognize that the care required is commensurate with the danger involved. But...
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