Reese v. Morgan Silver-Min. Co.

• Decision Date: 01 October 1898
• Court: Utah Supreme Court
• Parties: E. W. REESE, ADMINISTRATOR OF THE ESTATE OF MEREDITH REESE, DECEASED, RESPONDENT, v. THE MORGAN SILVER MINING COMPANY, A CORPORATION, APPELLANT

54 P. 759

17 Utah 489

E. W. REESE, ADMINISTRATOR OF THE ESTATE OF MEREDITH REESE, DECEASED, RESPONDENT, v. THE MORGAN SILVER MINING COMPANY, A CORPORATION, APPELLANT

Supreme Court of Utah

October 1, 1898

Appeal from the third district court, Summit county, Hon. A. G Norrell, Judge.

Action by E. W. Reese, administrator of the estate of Meredith Reese, deceased, against the Morgan Silver Mining Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Moyle Zane & Costigan, for appellant:

That the defendant was guilty of negligence, see Butte v. Coal Co., 47 P. 77.

It is error to instruct the jury that what is contributory negligence in one may not be in another. See 11 Ency. Plead 131.

If a machine or appliance wherewith, or place wherein the servant is put to work is unsafe, and that fact is open equally to the knowledge of the servant and the master, and there is no assurance from the master that the machine or appliance or place is safe, or no promise on the part of the master made to the servant to remedy the machine, appliance or place, then the danger becomes one of the ordinary risks of the particular line of work wherein the servant is engaged, an ordinary risk which the servant assumes, and for an injury resulting therefrom he cannot recover. Dougherty v. West Superior 1. & S. Co. (Wis), 60 N.W. 274; Senior v. Ward, 10 Morrison Mng. Rep. 651; Diamond Plate Glass Co. v. Dehority, 40 N.D. 681; Southern Pacific v. Seley, 152 U.S. 145; Rooney v. S. & D. Cordage Co., 36 N. E., 789; Writt v. Girard Lumber Co., 65 N.W. 173; Malm v. Thelin, 66 N.W. 650; Clatt v. N. C. Foster Lumber Co., 66 N.W. 791; Chicago, B. & Q. R. Co. v. McGinnis, 68 N.W. 1057; Nuss v. Rafsnyder (Pa.), 35 A. 958; Bonnet v. Galveston, H. & S. A. Ry. Co., 31 S.W. 523.

Powers, Stroup & Lippman, for respondent:

The question of negligence of the defendant and that of the deceased were for the jury. Reese v. Morgan Silver Mining Co., 49 P. 824.

What has been said on said questions of negligence applies with equal force on the question of assumption of risk. Reese v. Morgan S. M. Co., supra.

The principles of law requested by appellant in (certain) requests (refused) were stated and restated (by the court in his charge). Surely the substance of law asked by appellant was given by the court in his charge. If so, appellant has no cause of complaint.

MINER, J. ZANE, C. J., and BARTCH, J., concur.

OPINION

MINER, J.:

Plaintiff's decedent, while employed by the defendant as a laborer, was killed while descending a ladder into defendant's mine, and this action was brought to recover damages, because of the defendant's negligence in furnishing decedent dangerous, rotten, and unsafe ladder upon which to descend into its mine to his work. This case came before this court on appeal from a judgment of non suit on a former trial, and the decision therein is reported in 15 Utah 453, 49 P. 824. Upon that hearing, based upon evidence reported in the case, we held that the question of the contributory negligence of the deceased was a question for the jury to pass upon, under all the facts and circumstances of the case.

Upon this trial, the testimony of Jones and Wilson, as given upon the former trial, was transcribed by the reporter, and, after a showing that it was correctly transcribed, and that the witnesses were out of the state and could not be reached by subpoena, the testimony was allowed and read in evidence for the plaintiff, under objection and exception by the defendant. We are satisfied that the showing was sufficient to justify the introduction of the transcript as evidence, under section 3475 Rev. Statutes 1898.

The testimony of Jones and Wilson, witnesses sworn on the part of plaintiff, was the same as on the former trial; and the testimony of witness Clark was substantially the same as on the former trial, except that he stated that it was unsafe to walk down the ladder in certain places, with his back to it.

Upon the first trial, the defendant offered no testimony, Upon this trial it introduced testimony tending to contradict that offered by plaintiff, and also offered evidence tending to show that it was negligent in the deceased to walk down the ladder with his back to it.

In our former opinion, reported in 15 Utah 453, 49 P. 824, we took occasion to make elaborate quotations from the testimony in the case, as it appeared on the part of the plaintiff, and we do not deem it necessary to reproduce it because of its similarity to the testimony offered upon this trial, on the part of the plaintiff. It is clear to our minds that the testimony offered by the plaintiff tended to make out a prima facie case against the defendant.

The question of contributory negligence of the deceased, and whether or not, by the exercise of reasonable care and prudence, he might have avoided the consequences of defendant's negligence, if it was such, were questions of fact for the jury to determine, under all the facts and circumstances of the case. In our former opinion we took occasion to elaborate upon these questions, and that decision is conclusive here. It is true that in this case testimony was offered tending to show that the deceased was negligent in walking down the ladder, but, as we have seen, this was a question for the jury to determine, under all the facts in the case. The jury were the judges of the facts, the credibility of the witnesses, and the weight of the evidence. The plaintiff asserted one state of facts tending to establish a prima facie case. The defendant disputed plaintiff's case, and alleged contributory negligence. The jury found in favor of the plaintiff. Under such circumstances, no question for review, on the facts, arises in this court. This has been the repeated and uniform holding of this court.

The defendant took exception to the following instruction given to the jury: "If the jury believe, from the facts, that the deceased went down the ladder with his back towards it, it is for the jury to say whether or not there was negligence. One man might be able to descend a ladder with agility and safety with his back towards it, and that might be the only convenient and safe way he could descend it, while it might be dangerous and negligence for another man to make the descent in that manner. What might be ordinary care and prudence in one case, might, under different surroundings and circumstances, be gross negligence. The question of negligence, or the want of it, must depend, not upon one fact alone, but upon all the facts and circumstances in the case."

The testimony on the part of the plaintiff shows that the deceased started down the ladder with his back to it. The incline was 30 to 40 degrees until the roller was reached and then it...