Taylor v. Los Angeles & S.L.R. Co.

• Decision Date: 29 May 1923
• Docket Number: 3932
• Citation: 61 Utah 524,216 P. 239
• Parties: TAYLOR v. LOS ANGELES & S. L. R. CO
• Court: Utah Supreme Court

216 P. 239

61 Utah 524

TAYLOR v. LOS ANGELES & S. L. R. CO

No. 3932

Supreme Court of Utah

May 29, 1923

Appeal from District Court, Fourth District, Utah County; Elias Hansen, Judge.

Action by Albert P. Taylor against the Los Angeles & Salt Lake Railroad Company. Judgment for plaintiff, and defendant appeals.

AFFIRMED.

George H. Smith, J. v. Lyle, R. B. Porter, and Dana T. Smith, all of Salt Lake City, and J. H. McDonald, of Provo, for appellant.

Parker & Robinson, of Provo, and J. Robert Robins, of Salt Lake City, for respondent.

CHERRY J. WEBER, C. J., and GIDEON, THURMAN, and FRICK, JJ., concur.

OPINION

CHERRY, J.

This action is to recover damages for personal injuries sustained by plaintiff while employed by defendant as a mechanic's helper, in its machine shops at Provo, Utah. A trial by jury resulted in a verdict for plaintiff, and from the judgment entered thereon defendant appeals.

The grounds of liability, as alleged in the complaint, are, in brief, that the plaintiff was directed to assist in moving a heavy machine from a freight car to the machine shops, and that the defendant negligently and carelessly failed and omitted to furnish fit and proper tools, or sufficient number of employees, or a fit and proper place for the work, and that while unloading the machine from a push car in the machine shop the defendant's agents and servants carelessly and negligently placed planks and rollers under the machine in such manner as to cause the machine to be thrown against and on the plaintiff, thereby causing the injuries complained of.

The defendant denied the alleged acts of negligence and pleaded that the kind and condition of tools, the number of employees, the condition of the premises, and the means of placing and using the tools, were all open, obvious, and known to plaintiff, and that the risk was assumed by him, and that he was accordingly precluded from recovering damages for his alleged injuries.

At the commencement of the trial, and more than 10 days after the filing of the defendant's answer, the plaintiff was permitted, over objections, to file a reply to the answer alleging, in general, that plaintiff had objected to the insufficient number of employees, to the condition of the premises, and to the kind of tools and appliances proposed to be used, but that defendant's agents assured him that they were sufficient and safe, and that plaintiff relied thereon and continued to perform the services as he was directed.

Appellant predicates error on account of the filing of the reply. No motion for continuance was made by defendant, and no injury whatever is shown to have been suffered by defendant on account of the filing of the reply. The filing of pleadings out of time is generally a matter of discretion with the trial court, and when, as in this case, it does not appear that the opposite party is prejudiced, there is no error in permitting it.

Appellant's counsel argues at considerable length that the filing of the reply was prejudicial to it because the court later submitted the matter contained in the reply to the jury, and claims there was no evidence in support of it. Numerous cases are cited to the effect that it is error to submit abandoned issues, or issues in support of which there is no evidence, to the jury. Without conceding that the error is sustained, if properly before this court (because there was some evidence on the subject), we are precluded from reviewing the objections to the instruction for the reason that the giving of the instruction is not assigned as error. Appellant's assignment of error in this respect is that the court erred in overruling defendant's objection to the filing of the reply. The error and prejudice complained of, if any, arose, not from the filing of the reply, but from the giving of the instruction, the giving of which is not assigned as error.

When the plaintiff rested his case the defendant moved for a nonsuit, which was overruled, and, when the evidence was all in, requested the court to direct a verdict for defendant, which was denied. The motion and request were on the grounds that the evidence did not establish negligence, and that it did establish the assumption of the risk by plaintiff. These questions require a statement of the plaintiff's evidence. Plaintiff furnished proof of substantially the following facts:

The plaintiff had been employed by the defendant as a mechanic's helper for two years or more previous to the time he was injured. He worked under a mechanic, and his duties were described by himself to be "to assist the mechanic in repairing engines. Do whatever he told me to do that was in that line, such as to get tools, return them to the tool room, using jacks to lift parts of the engine or engines, and do other things that might occur in that line." On December 31, 1920, he was directed to assist two mechanics in unloading a flue welding machine, also called a "flue roller," weighing from 600 to 1,000 pounds, from a freight car and taking the same to the machine shop, where it was to be installed. They removed the machine from the freight car to a small push car, by placing two wooden planks between, and, by means of rollers placed under the machine, rolled it on the planks to the push car. They then pushed the machine on the small car into the machine shop where it was to be installed. Before starting to unload it, the plaintiff said "the machine was too heavy, and I thought we ought to leave it until another day and get the bull gang to unload it." Whereupon Mr. Leeks, his superior, and one of the mechanics in charge said:

"Mr. Hall said to get it off to-night, and it will only take a few minutes to get it off it we hurry; then it will be off."

There was ice on the floor of the machine shop, the existence of which the plaintiff had known for several days. When the machine fell against plaintiff his feet slipped, but he said he did not think the slippery condition of the floor had anything to do with the accident.

The plaintiff described the accident as follows:

"We pushed it in about 125 feet, as close as we could to where it was to be installed. We got it as near as we could to that place. Mr. Leeks gets a plank, and I goes to get another plank, so that there would be two planks, the same as when we got it out of the box car. We put the plank through under the machine between these two runners that were fastened onto the machine, and it projected straight out parallel to the bottom of the car and was standing there in the air out above the floor. I went to get another plank and was coming with it, and he says, Mr. Leeks says: 'This will be all right. We can put some rollers under it and she will go all right.' So I drops the plank that I had. Me and Mr. Leeks raised the machine up, and Houseman placed the rollers under it. Mr. Leeks was standing on the back of the push car, on the push car back of the machine, and these rollers were setting under the 2x4 that was nailed onto the machine and on the plank that we were to roll it down. He says: 'Taylor, you get on that side and Houseman on that side, and steady the machine. Hold on to it, and when I raise it up it will tip the plank down and she will roll down onto the floor.' Mr. Houseman got on the other side, and Mr. Leeks stood on the push car back of the machine with a bar. He pried up on the machine, and the plank came with it, and as it got on an incline headed down the plank the rollers and all came and knocked me down and fell across my leg, and I knew that my leg was broken."

It was further shown that the top of the push car, upon which the machine stood, was about 20 inches from the floor; that the machines was 45 inches high; that the width of the plank placed under the machine, upon which to roll it to the floor, was 8 inches less than the width of the machine.

To entitle the plaintiff to go to the jury it is necessary for him to introduce merely such evidence as will raise a fair presumption of the defendant's negligence and of resulting injury to himself, and where the question is doubtful it is for the jury. Johnson v. Silver King C. M. Co., 54 Utah 34, 179 P. 61. It is not pointed out, nor is it possible to determine from the evidence, the particular act or omission which caused the accident. This is not required. It is sufficient if the jury may properly infer that the accident was caused by the defendant's negligence. 4 Labatt's Master & Servant § 1603; Tuckett v. Am. S. & H. L., 30 Utah 273, 84 P. 500, 4 L....