Russell v. Borden's Condensed Milk Co. of Utah

• Decision Date: 13 June 1918
• Docket Number: 3210
• Citation: 53 Utah 457,174 P. 633
• Parties: RUSSELL v. BORDEN'S CONDENSED MILK CO. OF UTAH
• Court: Utah Supreme Court

174 P. 633

53 Utah 457

RUSSELL v. BORDEN'S CONDENSED MILK CO. OF UTAH

No. 3210

Supreme Court of Utah

June 13, 1918

Appeal from the District Court of Cache County, First District; Hon J. D. Call, Judge.

Action by C. B. Russell against the Borden's Condensed Milk Company of Utah.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

Nebeker Thatcher & Bowen for appellant.

A. A Law and George Q. Rich for respondent.

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

OPINION

FRICK, C. J.

The plaintiff, as an employee of the defendant, obtained judgment against it for personal injuries, which, he alleges, were caused by defendant's negligence.

The gist of the negligence alleged in the complaint is that the defendant was negligent in failing to provide proper and suitable tools and implements to move a certain machine, and that the same was moved in an improper, dangerous, and hazardous manner. The defenses interposed, which are now material are: (1) A denial of the alleged negligence; (2) contributory negligence on the part of the plaintiff; and (3) assumption of risk.

The controlling facts, as they appear from the evidence produced by the plaintiff at the trial, in substance, are as follows: On the 12th day of October, 1916, the plaintiff was in the employ of the defendant corporation which owned and operated a plant at Logan, Utah, at which it manufactured condensed milk and other dairy products. The plaintiff was a common laborer, and from the time of his employment by the defendant, in June, 1916, to the time of the injury was engaged in receiving milk, cleaning out what are called "hot wells," and doing that character of work about the plant. The defendant, during the summer of 1916, had enlarged its manufacturing plant by constructing an additional building adjoining the one in which the machinery was operated and the injury complained of was inflicted on plaintiff while engaged in moving a certain machine a distance of from fifteen to eighteen feet from the old to the new building. The machine in question is called a homogenizer. It is a compact machine, entirely composed of metal, and, according to plaintiff's evidence, was about seven feet in length, about four feet in width, and about three feet high, and weighed between three and four tons. (According to the evidence of the assistant superintendent of the defendant the machine was somewhat shorter and weighed 7,500 pounds.) The machine, while in use in the old building was about fourteen to eighteen inches lower than the surface of the floor of the building, and, preparatory to moving the same, it had been raised to the level of the floor or a little higher by jackscrews, and, according to plaintiff's testimony had been placed on planks three inches thick, 12 inches wide, and about sixteen or eighteen feet in length. According to the assistant superintendent's testimony the planks were four inches thick. The machine had also been placed on three iron rollers from two and one-half to three inches in diameter. The machine was in the condition just stated, and ready to be moved when the plaintiff was called by the foreman of the defendant to assist six or seven other employees to move the machine from the old into the new building, a distance variously estimated of from fifteen to twenty feet. The exact distance is immaterial, however. The machine was moved in the evening after the regular day's work had been completed. After the machine had been raised as aforesaid, and had been placed on the planks and the iron rollers, it was propelled forward by means of crowbars. It seems not much force was required to move the machine forward on the planks and the rollers. When the machine had been moved into the new building, which, as before stated, was merely an addition to the old one, it became necessary to shift it into position so as to place it in proper alignment with other parts of the machinery in that building. This part of the work it seems, was more or less difficult, in that it required the men to lift and shift the machine into the desired position by using levers. The machine was, however, still resting on the planks and the rollers, and thus its base, according to the evidence, was from five and one-half to six and one-half inches from the floor which was made of solid concrete or cement. The work of moving and placing the machine had been done under the direction of the assistant superintendent of the defendant, and the men, in raising and shifting the machine, acted under his orders. For the purpose of lifting and shifting the machine into alignment, as before stated, the assistant superintendent directed the men to procure certain planks, two inches thick by six inches wide and about ten or twelve feet in length, which were lying outside of the building. The men including the plaintiff, procured the planks, two of which were two inches thick by six inches wide, while the third was four inches thick by six inches wide, for the reason that two two by six inch planks had been nailed together. Two men were placed in charge of each plank. The assistant superintendent directed the men to place one end of the aforesaid planks under the base of the machine edgewise, that is, the narrow end upwards, and by placing a piece of wood under the plank to act as a fulcrum, and in that way to raise and lift the machine up by pressing down on the levers or planks. By that method the men, by concerted action, would raise or pry up the machine somewhat by pressing down on the levers, and, in accordance with the directions of the assistant superintendent, would swing the ends of the planks used as levers, in the direction indicated by him, and in that way would shift the machine in the desired direction. While in the act of lifting and shifting the machine one of the two by six planks-used as a lever was permitted to turn over on its flat side, and in doing that the entire weight of one side of the machine was suddenly shifted onto the plank or lever on which plaintiff was working. The additional weight thus cast upon that lever forced it out of the hands and control of the plaintiff and his fellow workman, and caused plaintiff to fall backward upon the cement floor, and the two by four plank fell on him. The plaintiff, by the fall, and by the two by four plank falling on him, as he alleges, sustained severe injuries to the bones of his hip and hip joint, which caused atrophy to one of his legs and serious injury to the sciatic nerves, which injuries, the doctors testified, were painful and permanent.

After proving the foregoing facts, and further proving the extent of the injuries, his earning capacity, his age, and his condition of health before the injury, and after introducing the evidence of an expert to the effect that the use of the planks and the method pursued by the assistant superintendent in shifting the machine were improper and unsafe, the plaintiff rested. The defendant moved for a nonsuit upon the grounds: (1) That the plaintiff had shown no negligence on the part of the defendant; (2) that plaintiff's evidence proved him guilty of contributory negligence; and (3) that plaintiff had assumed the risk. The court denied the motion for a nonsuit. The defendant then produced evidence contradicting in part plaintiff's theory and manner of the occurrence of the accident. After defendant had produced this evidence, it requested the court to instruct the jury to return a verdict for the defendant. The court denied the request.

In view that we cannot pass upon the weight of the evidence, no purpose could be subserved in setting forth even the substance of defendant's evidence, and hence we shall refrain from doing that. Moreover, defendant's counsel, apart from certain objections to instructions and to certain evidence, in their brief, have argued only the one question of assumed risk.

Counsel now contend that under the undisputed evidence plaintiff assumed the risk as a matter of law. The contention is primarily based upon the following propositions: (1) That the tools or implements provided by the defendant and used for the purpose hereinbefore stated were simple, and their character and use were within the comprehension of any ordinary man; and (2) that the master had a right to select his own method of moving the machine, and that the character of the tools or implements used and the method pursued were as open and obvious to the plaintiff as to the defendant, and that he knew as much concerning the probable effect of using the implements and of pursuing the method as the defendant or any one else.

While it is true that in carrying on his business the master is not bound to pursue any particular method, and that he does not insure the safety of his employees in adopting any particular method, yet the law imposes a duty upon the master that "the methods, as well as the appliances, adopted by the master must be reasonably safe." 3 Labatt's Mast. &amp Serv. section 936. The case at bar, however, does not present the precise question of carrying on the master's business in a particular way or by using a particular method. In this case the plaintiff was not injured while he was engaged in the performance of his usual or everyday work. Here the servant was called on to do something which was quite outside the scope of his usual employment, and the special work was performed under the personal direction and supervision of the assistant superintendent who represented the master. The rule, therefore, which counsel invoke cannot be said to be applicable to the full extent claimed by them. While it is true, as counsel suggest, that plaintiff saw and thus had full knowledge of the method that was pursued in moving the...