Roth v. Eccles

• Decision Date: 07 March 1905
• Docket Number: 1571
• Citation: 28 Utah 456,79 P. 918
• Court: Utah Supreme Court
• Parties: GEORGE ROTH, Respondent, v. DAVID ECCLES, Appellant

79 P. 918

28 Utah 456

GEORGE ROTH, Respondent, v. DAVID ECCLES, Appellant

No. 1571

Supreme Court of Utah

March 7, 1905

Appeal from the First District Court, Cache County.--Hon. Charles H Hart, Judge.

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

REVERSED.

Lindsay R. Rogers, Esq., and John A. Street, Esq., for appellant.

Appellant is sued in this action for negligence and can only be held liable where there is some evidence tending to show his negligence.

Negligence is a relative term and is well defined by the Supreme Court of the United States, as follows:

"Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done. The essence of the fault may lie in omission or commission. The duty is dictated and measured by the exigencies of the occasion." Railroad v. Jones, 95 U.S. 439 (441).

Applying this definition to the undisputed facts, as shown by the record in this case, it cannot be well said that the appellant either did or failed to do anything, under the circumstances of the situation, which a reasonable or prudent man would have done or would not have done under the same circumstances.

What did appellant, under the circumstances of the situation, do or fail to do?

He failed to cause the window opening to be boarded up or otherwise guarded, after the frame was set, and before the sash was put in, and while the brickmason was turning the arch over the window and while the walls were being laid up so that a brick could not possibly fall through to the ground, and this was the way, manner and method commonly and ordinarily pursued in the building and brickmasons' trade generally, and was the ordinary usage of the business or trade.

The boarding up of the opening would, of course, have prevented the brick from falling through, and the accident and injury to respondent avoided, but such a precaution was not of common use. Under the law appellant was not required to use the newest or latest appliances, or to take precautions not in common use under the same situation and circumstances.

Under the law it was appellant's duty to provide the same kind of appliances, or appliances equally as safe, and to take the same precaution against risk and injury to his servants as those in general use by men of ordinary prudence who are engaged in the same kind of business. Boyle v. R R., 25 Utah 420 (431); Pool v. S. P. Co., 20 Utah 210; 1 Sherman & Redfield On Negligence, sec. 194.

This court has quite recently in a most carefully considered opinion stated the law to be as follows:

"It is further contended that defendant's failure to guard protect and insulate the dynamos was negligence.

"The machinery and appliances used by defendant in its electric light plant before and at the time of the accident were of the kind commonly and ordinarily used in other electric light plants, and the manner and methods of running and operating them were the same. The rule has become elementary that where a master has furnished the servant with machinery and appliances reasonably safe and suitable and such as are in general use for carrying on the same kind of business as that in which the master is engaged, and the servant is injured without any fault of the master, the master cannot be held liable because he failed to make use of some attachment or special device that might have rendered the operating of the machinery less dangerous and the accident thereby might have been avoided.

"In the case of Titus v. Railway Co., 136 Pa. 618, which is a well considered case, the court said: 'To show that a practice is dangerous does not prove it to be negligent. Some employments are essentially hazardous, and it by no means follows that an employer is liable because a particular accident might have been prevented by some special device or precaution not in common use. All the cases agree that the master is not bound to use the newest and best appliances. He performs his duty when he furnishes those of ordinary character and reasonable safety, and the former is the test of the latter; for in regard to the style of the implement, or nature of the mode of performance of any work, reasonable safety means according to the usages, habits and ordinary risks of the business.

"Absolute safety is unattainable and employers are not insurers. They are liable for the consequences, not of danger, but of negligence; and the unbending test of negligence in methods, machinery, and appliances is the ordinary usage of the business. No man is held to a higher degree of skill than the fair average of his trade or profession, and the standard of due care is the conduct of the average prudent man. The test of negligence as to employers is the same; and however strongly they may be convinced that there is a better or less dangerous way, no jury can be permitted to say that the usual way commonly adopted by those in the same business, is a negligent way, for which liability shall be imposed. Juries must necessarily determine the responsibility of individual conduct, but they cannot be allowed to set up a standard which shall in effect dictate the customs or control of the business of a community.'" Fritz v. Electric Light Co., 18 Utah 493 (500-501).

Applying these principles of law to the undisputed facts as shown by the record in this case, it is earnestly contended that appellant was not guilty of negligence and the learned trial judge erred in not instructing the jury to return a verdict of no cause of action.

"Juries must necessarily determine the responsibility of individual conduct, but they cannot be allowed to set up a standard which shall in effect dictate the customs or control of the business of a community." Fritz v. Electric Light Co., supra.

Geo. Q. Rich, Esq., and F. K. Nebeker, Esq., for respondent.

It is true that absolute safety for employees is unattainable and that no such insurance is required of the master against danger, and that juries while determining the responsibility of individual conduct, are not to set up any fanciful standards by which to judge the conduct of the master.

Such should be the law. But customs are not permitted to run counter to the elementary principles and rules of negligence.

The Supreme Court of this State has laid down very distinctly and very definitely the elementary principles of negligence which enter into this case; and in the case of Pool v. Railroad, 20 Utah 215, cited by appellant, the first branch of our case at bar is so plainly covered by the opinion therein, that we beg leave to quote somewhat extendedly, from the same. The court said:

"1. As to the duties which the master owes the...