Neilson v. Nebo Brownstone Co.

• Decision Date: 30 June 1902
• Docket Number: 1359
• Citation: 69 P. 289,25 Utah 37
• Court: Utah Supreme Court
• Parties: SAMUEL NEILSON, Respondent, v. THE NEBO BROWN STONE COMPANY, a Corporation, Appellant

69 P. 289

25 Utah 37

SAMUEL NEILSON, Respondent, v. THE NEBO BROWN STONE COMPANY, a Corporation, Appellant

No. 1359

Supreme Court of Utah

June 30, 1902

Appeal from the Fifth District Court, Juab County.--Hon. T Marioneaux, Judge.

Action to recover damages for personal injuries alleged to have been received by the plaintiff while working in and about the defendant's stone quarry. From a judgment in favor of the plaintiff, the defendant company appealed.

REVERSED.

Messrs Rawlins, Thurman, Hurd & Wedgwood and Messrs. Brown &amp Henderson for appellant.

Messrs Powers, Straup & Lippman for respondent.

BASKIN, J. MINER, C. J., concurs in the order reversing the judgment. BARTCH, J., concurs.

OPINION

BASKIN, J.

--This is an action to recover for injuries to the plaintiff alleged to have been caused by the negligence of the defendant while he was engaged, as an employee of the defendant, in working in and about defendant's stone quarry. The acts of negligence alleged were a failure by the defendant to provide a reasonably safe or proper place for the plaintiff to perform his work, to provide him a means of escape or retreat when blasting, to warn him of the blast which caused the injury, to give sufficient time for him to retreat, and to furnish a reasonably safe place where he could have been protected from flying rock; that on the day of the injury the defendant's foreman in charge of the work and blasting carelessly and negligently, and without affording plaintiff reasonable or sufficient time or opportunity to leave or to retreat or to escape from his work, and while plaintiff was so at his work in the course of his employment, negligently and carelessly, by means of electrical appliances, suddenly, and without notice and warning operated said appliance, and blasted large quantities of rock causing particles and pieces thereof and rock and stone to fly and be thrown promiscuously, in consequence of which, and of the acts of negligence of defendant alleged, plaintiff was struck by particles of stone and injured. The plaintiff, after testifying in chief that he was twenty-three years of age, was allowed, over the objection of defendant, to state that he had had no experience in a quarry; had never been where they were blasting, and did not know anything about that, and had no knowledge or experience how far or with what force rocks would fly when blasted. The objection to this testimony was that it was not within the issues, and was irrelevant. It was admissible in rebuttal on the issue of contributory negligence, and, as will hereinafter appear, was so treated by defendant. There is nothing in the record which shows that the purpose for which the testimony was introduced by plaintiff was disclosed at the trial. Its purpose was first disclosed by the following statement in the supplemental brief of plaintiff's counsel, to-wit: "Counsel beg the question when they argue, as they do, that this testimony is not competent to prove a direct act of negligence of the defendant--that is, of placing an inexperienced servant at dangerous employment without instructing and warning him--because of the want of such allegations in the complaint. The evidence was not offered or received for any such purpose. If this evidence was competent and material as bearing on the question of plaintiff's contributory negligence and assumption of risk, then of what consequence is it to discuss why it is incompetent or immaterial on something...