Meyers v. Highland Boy Gold Min. Co.

• Decision Date: 20 June 1904
• Docket Number: 1557
• Citation: 77 P. 347,28 Utah 96
• Court: Utah Supreme Court
• Parties: JOHN W. MEYERS, Respondent, v. THE HIGHLAND BOY GOLD MINING COMPANY, a Corporation, Appellant

77 P. 347

28 Utah 96

JOHN W. MEYERS, Respondent, v. THE HIGHLAND BOY GOLD MINING COMPANY, a Corporation, Appellant

No. 1557

Supreme Court of Utah

June 20, 1904

Appeal from the Third District Court, Salt Lake County.--Hon. S.W Stewart, Judge.

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

REVERSED.

Messrs Sutherland, Van Cott & Allison for appellant.

Messrs Sullivan & Barnes for respondent.

BARTCH, J. BASKIN, C. J., concurs. McCARTY, J., dissenting.

OPINION

BARTCH, J.

--This action was brought to recover damages for personal injuries, which the plaintiff claims he received because of the negligence of the defendant. In the complaint, so far as material to this decision, it is alleged that on January 28, 1902, the plaintiff was in the employ of the defendant company at its smelting works, and while so in its employ was ordered by defendant to assist in passing crushed ore from a certain ore bin, through chutes, into an ore car; that previously the plaintiff had been employed as a helper in the roasting department, but had not until that day assisted in passing ore through the bins; that it was necessary for him, in performing such work, to stand or sit on a narrow plank or platform, about six inches wide, extending around the top of the bin; that same was not a reasonably safe place, or sufficient for him to perform the work; that defendant had negligently permitted crushed ore to collect and remain upon the platform, thereby increasing the unsafeness thereof, and had negligently failed to provide any other place for plaintiff to stand or sit; that the place and premises were insufficiently and improperly lighted; that by reason of the neglect of defendant to provide a safe place for plaintiff to perform the work, and to sufficiently and properly light said place and premises, plaintiff fell from the platform into the bin; that, after falling into the bin, his right limb extended about five inches below the lower end of the chute, and he was unable to move or extricate himself; that defendant discovered his helpless condition, and it became its duty to use every precaution and all possible means to extricate him without injury, but that it negligently and carelessly moved the ore car, which was then immediately beneath the bin, against plaintiff's right leg, which was broken in consequence, and plaintiff otherwise injured; that the injuries so received are permanent and lasting; and that plaintiff will be unable to do any physical labor during his life. The answer denies these allegations of the complaint, and affirmatively pleads contributory negligence on the part of the plaintiff and an assumption of risk.

From the evidence it appears that the plaintiff was employed by the defendant to work in the roasting department of its smelter, about the middle of October, 1901, and continued in the employment until the date of the accident, January 28, 1902; that generally he was employed in a building separate from that in which the accident occurred; that on the day of the injury, and on one previous occasion, he was, by order of the foreman, working in the crusher building, assisting in passing ore through a certain ore bin, known as "bin No. 4," into a car standing on the track underneath the ore chute; that the bin, which was in the second story of the building, was about eight and one-half feet wide, eleven and one-half feet long, and twelve feet deep; that the timber around the top of the bin is twelve inches square, and one piece of the same size extends across the top of the bin east and west; that across the top of the bin there extends north and south also a tramway track, from two to three feet wide; that this arrangement of the timber and track leaves the openings into the bin about three and one-half by three and two-thirds feet in the clear; that the timber and the track were the only place upon which the plaintiff could stand or sit in the performance of his work; that there are a number of bins in the same room, the room being lighted with electricity, and bin No. 3 being next to No. 4; that the ore, after being crushed, was dropped from above, first into bin No. 3, and, when that was full to above the top, the ore would run thence over into bin No. 4; that the ore collected on the timbers, and, in cold weather, would freeze on the timbers and in the bins, forming a crust over the surface thereof; that when the ore was so frozen it was necessary to push it with an iron rod to keep it moving through the chute into the car; that at the time of the accident the plaintiff was sitting upon one of the timbers of bin No. 4, and was pushing into the ore below him with an iron rod to keep the ore moving; that, while so engaged, he lost his balance, fell into the bin, and was immediately covered up with ore; that upon falling into the bin his right leg extended from the chute into the ore from a point about the knee; and that the foreman and another employee discovered him in this condition, and fearing that the ore would smother him, and believing themselves unable to extricate him in time to save his life with the car where it was, ran the car north, so as to clear the chute, and thereby broke the plaintiff's leg and caused the injuries of which he complains.

At the trial a verdict was returned, and judgment entered thereon, in favor of the plaintiff. The record contains numerous assignments of error, but they present only a few questions necessary to be determined upon this appeal.

The appellant, in the first instance, insists that the court erred in the admission in evidence of the opinions of witnesses respecting the sufficiency of light and the necessity of additional light at the ore bin in question when the accident occurred. The witness Wright, called by the plaintiff, in his examination in chief, and after having testified respecting the location and character of the lights in the vicinity of the bin where the injured man had been at work, was asked a question, as follows: "Would that be sufficient light for the bin to enable one punching ore down to see anything about what was in the bottom of the bin?" This question was objected to as being one for the jury to determine, and not for the witness. The objection was overruled, and the witness answered: "It would not." Thereafter, upon cross-examination, the witness Crellin, who in his direct testimony had described the location and character of the different lights with reference to the ore bin, and had stated as a fact that there was a light over bin No. 4, which fact was disputed by witnesses for the plaintiff, was asked: "Do you say a light over bin No. 4 was necessary for the safety of the men or a man working by it?" This was objected to as calling for a conclusion, and as being one of the questions which the jury was called upon to determine. The objection was overruled, and the witness answered: "It would not be perfectly necessary, but it would be more safe to have two lights there than it would be to have one."

It is clear that the objections to this testimony ought to have been sustained. Both questions were improper, under the circumstances, and the answers thereto inadmissible, under the familiar rules of evidence. As may be observed, one of the principal grounds of negligence alleged in the complaint is that the "place of work" and premises were "insufficiently and improperly lighted," and that, by reason of the neglect of the defendant "to sufficiently and properly light said place and premises," the plaintiff "fell from the platform into said bin" and was injured. This was denied by the answer, and by such denial the sufficiency of light to render the place safe became an issue in the case, to be determined by the jury from the facts and not from opinions of witnesses; the subject of inquiry being one not requiring such opinions to enable the jury to comprehend the real situation and draw correct conclusions. Where, as here, the subject-matter concerning which inquiry is being made is within the comprehension of persons of ordinary intelligence, witnesses must state the facts, and the jury must draw its deductions from those facts. When the condition of a thing is such that language is inadequate to so describe it as to enable the jury to obtain a correct conception, or a proper realization and comprehension of it, witnesses may state their opinions in relation to it, or describe it by its effects upon their minds; but, if their opinions are founded upon facts which can be weighed and comprehended by the jurors, as well as by the witnesses, those facts, and not opinions based thereon, should be laid before the jury.

To permit a witness, under the pleadings in this case, to state that the lights were insufficient, or that an additional light was necessary to render the place safe, would be an invasion of the province of the jury. In answering the questions asked, the witnesses necessarily decided a material issue, which the jury could readily have determined from the facts laid before them, and from facts which could have been laid before them. The cases where opinions of witnesses are received in evidence are exceptions to the general and elementary rule that witnesses must state facts, and not give their opinions. "The law does not look with favor upon the introduction of opinions in evidence. As a rule witnesses are expected to testify to facts, and it is for the court or jury to draw conclusions and form opinions from the facts thus brought before them. Even when opinions are admitted the ostensible purpose is to inform the jurors concerning some fact, and evidence which is sometimes received...