Picino v. Utah-Apex Mining Co.

• Decision Date: 24 June 1918
• Docket Number: 3175
• Citation: 173 P. 900,52 Utah 338
• Court: Utah Supreme Court
• Parties: PICINO v. UTAH-APEX MINING CO. et al

173 P. 900

52 Utah 338

PICINO v. UTAH-APEX MINING CO. et al

No. 3175

Supreme Court of Utah

June 24, 1918

Action by Jnasio Picino against the Utah-Apex Mining Company and another for personal injuries.

Judgment for plaintiff. Defendants appeal.

AFFIRMED.

King Nibley & Farnsworth for appellants.

Weber Olson & Lewis for respondent.

THURMAN J. FRICK, C. J., and McCARTY, CORFMAN, and GIDEON, JJ., concur.

OPINION

THURMAN, J.

Plaintiff, an employee of defendant corporation, was injured in defendant's mine at Bingham, Utah January 28, 1916, and brought this action to recover damages for the injury. The circumstances of the injury, as alleged in the plaintiff's complaint, are as follows:

"That on or about the 28th day of January, 1916, the plaintiff was ordered and directed by the defendant to tie a rope to the truck of an ore car at the bottom of a raise on the 700-foot level of the defendant mining company's mine and to assist in raising said truck up through said raise; that said rope was extended down to the 700-foot level of said mine from the top of said raise, a distance of about 60 feet; that the defendant Joseph Norden stood at the top of the raise and directed the work of the plaintiff; that in obedience to the instructions of said shift boss the plaintiff tied said rope to the truck at the bottom of said raise, and was engaged in steering said truck up said chute from one landing to another, in order to prevent its being caught on the timbers while said truck was being drawn up by the defendants; that when said truck reached the first landing, about 12 feet from the bottom of the raise, the plaintiff discovered and notified the defendants that the rope was slipping from the truck, and requested the defendants to wait before hoisting the truck further on up the raise, and permit the plaintiff to there tie the rope more securely to the truck, in order to prevent it from slipping off and causing the truck to fall upon the plaintiff; but that the defendants then and there carelessly and negligently disregarded said request of the plaintiff, and carelessly and negligently ordered and caused said truck to be raised without giving the plaintiff an opportunity to again tie said rope at said point, and without giving the plaintiff an opportunity to escape from the danger of said truck falling down upon him."

Defendants denied the allegation, and pleaded, in defense, contributory negligence, assumption of risk, and negligence of a fellow servant. The case was tried to a jury, verdict was rendered for plaintiff, and judgment entered. Defendants appeal, and assign many errors, but in their argument and brief rely only upon the alleged errors of the court in instructions to the jury.

There is a sharp conflict in the evidence as to the circumstances attending the accident which resulted in the injury complained of, but there is substantial evidence in the record to prove the allegations of the complaint as to how and in what manner the accident occurred, and it is not contended by the appellants that the evidence is insufficient to sustain the verdict. The theory of the defendants, and the evidence introduced to support it, was to the effect that the defendant Norden was not present at the top of the raise when plaintiff went down to tie the rope; that he gave no orders to plaintiff; that plaintiff did not request him to wait until he tied the rope; that the rope was not pulled up by the men at the top until plaintiff himself said "All right." It is further contended by defendants that plaintiff himself was negligent in the manner in which he tied the rope, and in not stepping out of the way of the truck when he knew it had not been securely tied.

As will be seen the two theories, while exceedingly simple, were nevertheless diametrically opposed one to the other. The court, in instructing the jury, fully presented the respective theories of the parties as to which any evidence had been produced, and declared the law applicable thereto. Instructions 10 and 12, involving plaintiff's theory and evidence, were objected to by appellants, and exceptions taken to each as a whole. Instruction 12 is more comprehensive than instruction 10, and covers the same matter. The exception to the former only need be considered in determining the validity of both assignments of error. Instruction 12 reads as follows:

"The court instructs the jury that if you believe from the evidence that the plaintiff told the defendant Norden in substance or effect that the rope was slipping, or knot loosened, or was not securely tied to the truck, or to wait before pulling the truck further up the raise to permit the plaintiff to tie the rope more securely, and that the defendant Norden heard the same and failed to permit the same to be done, or ordered the truck to be pulled on upward without awaiting for that to be done, and that as a result of such omission on his part the truck was pulled upward in the raise without being securely tied to the rope, and that by reason thereof it slipped from the rope and fell down upon the plaintiff and injured him, and if you further believe from the evidence that the plaintiff exercised reasonable care for his own safety, and was not himself guilty of negligence contributing to his injury, then I instruct you it would be your duty to return a verdict in favor of the plaintiff and against both of the defendants in this action."

It is not contended by appellants that this instruction was outside of the issues presented or the evidence submitted. In fact, it is admitted that the evidence was contradictory in every fact relating to what occurred as to the cause of the accident. It is sufficient to say that there was substantial evidence to sustain every hypothesis presented by the instruction. The objection raised by appellants' exception is that the court instructed the jury that, if they found certain facts to exist, then such facts, as matter of law, would constitute negligence and establish defendants' liability. It would undoubtedly have been more prudent if the court had instructed the jury that they might infer negligence if they found certain facts to exist, especially where, as in this case, there is no positive law making such facts conclusive of negligence; but the court did not so instruct, and it becomes our duty to determine whether or not the court was justified in instructing the jury as above stated. In determining the validity of the instruction, we must assume that the jury found that the hypotheses presented were established by the evidence as actual facts and treat the matter the same as if the facts were admitted.

The facts, then, we have to consider, are these: The plaintiff went down to the seven-hundred-foot level, in discharge of his duty, to tie a rope around the truck loaded with ore, so that the same might be hoisted to the top of the raise. The defendant Norden, foreman of defendant company, was at the top of the raise in charge of the men hoisting the truck. The hoisting was done by the defendant and the men in his charge pulling on the rope, which extended from the top of the raise down to the truck. Plaintiff, after tying the rope to the truck, and when the lifting began, informed the defendant Norden that the rope was slipping, or the knot had loosened, and that the rope was not securely tied to the truck, and requested him to wait until he tied the rope more securely. Defendant Norden heard the plaintiff and failed to grant his request, but, on the contrary, ordered the men to pull the truck up without waiting for the rope to be securely tied, and by reason thereof the truck slipped from the rope and fell down upon the plaintiff, producing the injury complained of. The fact must also be assumed that the plaintiff himself was not guilty of negligence contributing to his injury.

We confess our inability to conceive of any legitimate excuse for the defendants' conduct under the circumstances disclosed by the facts, or to arrive at any other conclusion than that they were guilty of negligence, and that such negligence was the proximate cause of the injury. The only excuse presented in the brief or argument of appellants' counsel is that defendant Norden, being acquainted with the mine, "might have assumed, and did assumed, that at the time plaintiff told him the rope was slipping, or was not securely tied, the plaintiff was in a place of safety, and that, even if the rope should slip from the truck, the plaintiff would not be injured thereby."

This theory of appellants' counsel is exceedingly farfetched in view of the facts which we are bound to consider. The plaintiff was at the bottom of the shaft...