Toone v. J.P. O'Neill Construction Co.

• Decision Date: 16 January 1912
• Docket Number: 2265
• Citation: 40 Utah 265,121 P. 10
• Parties: TOONE v. J. P. O'NEILL CONSTRUCTION COMPANY
• Court: Utah Supreme Court

121 P. 10

40 Utah 265

TOONE v. J. P. O'NEILL CONSTRUCTION COMPANY

No. 2265

Supreme Court of Utah

January 16, 1912

APPEAL from District Court, Second District; Hon. J. A. Howell. Judge.

Action by Charles S. Toone against the J. P. O'Neill Construction Company.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

C. S Varian and Valentine Gideon for appellant.

APPELLANT'S POINTS.

By statute the defendant in an action is permitted to set forth by answer as many defenses and counterclaims, legal or equitable, or both, as he may have. (Compiled Laws Utah 1907, sec. 2972.) And also by statute, allegation of new matter in the answer to which a reply is not required is deemed controverted by the adverse party. (Id., sec. 2996.)

Assuming that the defenses are utterly inconsistent, the rule is established by an overwhelming weight of judicial authority that, unless expressly prohibited by the statute, they may still be united in one answer. It follows that the defendant cannot be compelled to elect between such defenses, nor can evidence in favor of either be excluded at the trial on the ground of the inconsistency. (Pomeroy, Remedies & Remedial Rights [2 Ed.], sec. 722; Miles v. Woodward, 115 Cal. 308; 46 P. 1076; Lakeshore, etc. Ry. Co. v. Warren, 3 Wyo. 134, 6 P. 724; Ray v. Moore, 24 Ind.App. 480-490, 56 N.E. 937-940; Kimball v. McIntyre, 3 Utah, 77-80; Murphy v. Carter, 1 Utah 17.)

When a denial is pleaded in connection with a defense of new matter, or two defenses of new matter are set up, the admissions in the one can never be used to destroy the effect of the other. The concessions of a defense by way of confession and avoidance do not obviate the necessity of proving the averments contradicted by the denial. This rule is universal even in those states where inconsistent defenses are not permitted to stand. The remedy is by striking out, or by compelling an election, and not by using the admissions of one to destroy the issues raised by the other. (Pomeroy Remedies & Remedial Rights, sec. 724; Hynes v. Packard, 92 Tex. 44, 45 S.W. 567; Light v. Stevens, 103 P. 361; Buhne v. Corbett, 43 Cal. 264; Billings v. Drew, 52 Cal. 565; Siter v. Jewett, 33 Cal. 92; McDonald v. S. C. Co., 101 Cal. 206, 35 P. 643; Banta v. Siller, 121 Cal. 414, 53 P. 935; Quigley v. Merritt, 11 Iowa 147; Shannon v. Pearson, 10 Iowa 588.)

The test by which the negligence of the master is to be determined, is that of ordinary and reasonable care; that is to say, such care as would be exercised by an ordinarily prudent and reasonable person under similar conditions and circumstances. Ordinarily this matter is to be determined by the jury sitting in judgment upon the act or omission, but, it is manifest, that there are cases which may and do arise in the diversified avocations of industrial and community life, where the doing or omitting to do any particular act must be committed to the experience and judgment of persons qualified. This principle is generally acknowledged in cases where the acts of medical men and surgeons are in question, and also in maritime cases where the judgment of the proper officers in charge of a vessel in a perilous situation, or one particularly demanding the knowledge, skill and experience of seamen, is held to be conclusive. (Lawrence v. Minturn, 17 Howard, 105, 110; City of Boston, 159 F. 261-266; Staloch v. Holm, 100 Minn. 276, 111 N.W. 264-266 (case of physician); O'Neill v. Railroad, 66 Neb. 638, 92 N.W. 731 (case of unblocked frog); Memphis P. Co. v. Briton, 25 Ohio C. C. 153; Piehl v. Railroad, 46 N.Y.S. 257, 19 A.D. 471.) When a servant enters upon or continues in a service with full knowledge that it is dangerous and is fully aware of the extent of the danger to which he is exposed, there is an implied contract of assumed risk, by which, on the principle of the maxim, Volenti nonfit injuria, the servant waives his right to recover for injuries received by him in such service. (Faulkner v. Mammoth Mining Co., 23 Utah 437-441, 66 P. 799; Brotzky v. Wisconsin Granite Co., 125 N. W. (Wis.) 916; Christiansen v. R. G. W. Ry., 27 Utah 132, 74 P. 876, 101 Am. St. Rep. 945.) And an assurance of safety, if given, cannot prevent the operation of a defense which is completely made out when it is proved that the risk was known to and comprehended by the servant. (1 Labatt Master & Servant, sec. 452.)

Evans & Evans and Powers & Marioneaux for respondent.

RESPONDENT'S POINTS.

The defendant's answer, denying merely "every material allegation of the complaint," raised no issue whatever. (Dodge v. Chandler, 13 Minn. 118; Montom v. Purdy, 11 Minn. 278; Pry v. Hannibal & St. Joseph Railroad, 73 Mo. 127; Edmondson v. Phillips, 73 Mo. 57.) It was proper to show that defendant had in its answer, notwithstanding its general denial, conceded that the place was dangerous. (Bierer v. Fretz, 32 Kan. 329, 4 P. 284; Derby v. Gallup, 5 Minn. 119, 120; Cook v. Finch, 19 Minn. 407-411; Conway v. Wharton, 13 Minn. 158; Jones v. Mutual Accident Assn., 92 Iowa 652, 61 N.W. 485; Graten v. Life Ins. Co., 92 N.Y. 274, 44 Am. Rep. 372; Boots et al. v. Canine, 94 Ind. 408; Buller, Nisi Prius, 237.) Whatever is admitted in a special defense operates, so far, as a modification of a general denial, and is to be taken as true, without other proof. (Wiley v. Keokuk, 6 Kan. 94; Butler v. Kaulback, 8 Kan. 668; Sexton, Trustee, etc. v. Rhames, 13 Wis. 111; Hartwell v. Page et al., 14 Wis. 53.)

Any fact sustaining the plaintiff's case, expressly admitted in one part of the answer, is to be taken as true for all purposes in the case and the plaintiff is relieved from the necessity of proving it. (Miller v. Larson, 17 Wis. 644; Farrell v. Hennesy, 21 Wis. 639; Alderman v. French, 1 Pick. 1.)

It was the foreman's assurance of safety that induced the plaintiff to remain where he was. The test under such circumstances is whether the servant acted as an ordinarily prudent man would have acted under the same circumstances. If he did, he was not guilty of negligence. The foreman's assurance of safety was made doubly convincing by the fact that he remained in the same place himself. This was surely enough to lull to security the mind of any man who thought the foreman competent and experienced. (Thompson v. Chicago M. & St. Paul Railway Co., 14 F. 564; English v. Chicago M. & St. Paul Railway Co., 24 F. 906; East Tennessee E. & W. Railway Co. v. Bridges, 92 Ga. 339, 17 S.E. 645; Cincinnati H. & I. R. R. Co. v. Madden, 134 Ind. 462; Frandsen v. Chicago Rock Island & Pac. Railroad Co., 36 Iowa 372; Grant v. Minneapolis Railway Co., 31 Minn. 248, 17 N.W. 378; Stephens v. St. Joe Railroad Co., 96 Mo. 207, 9 S.W. 589; Ballard v. Chicago, Rock Island & Pac., 51 Mo.App. 453; Munyon v. Kansas City, etc. Co., 58 Mo.App. 68; Faulkner v. Mammoth Mng. Co., 23 Utah 437, 66 P. 799; Mangum v. Mining Co., 15 Utah 534, 50 P. 834; Miller v. Mining Co., 18 Utah 358, 55 P. 58; Pool v. Railroad Co., 20 Utah 216, 58 P. 326.)

To make a man feel secure in a place you know to be dangerous, when otherwise he would fly from it, is to wrong him. This is the real ground of our complaint. (Tuckett v. Am. Steam and Hand Laundry, 30 Utah 273, 84 P. 507, 4 L. R. A. (N. S.) 990, 116 Am. St. Rep. 832; Fowler v. U. P. C. Co., 39 Utah 363, 117 P. 462; Chicago A. Pressed Brick Co. v. Sobkawiak, 148 Ill. 573, 36 N.E. 572; Fox v. Hannibal & St. Joe R. R. Co., 96 Mo. 207.)

FRICK, C. J. McCARTY, J., STRAUP, J., concurring.

OPINION

FRICK, C. J.

This is an appeal from a judgment awarding damages for personal injuries sustained while respondent was the employee of appellant.

The material and controlling facts on behalf of respondent, in substance, are as follows: At the time of the injuries complained of, and for a long time prior thereto, appellant was engaged in operating a stone quarry in Morgan County Utah. It employed a considerable number of men to carry on the business, of which respondent was one, and he had been in its employ for four or five months immediately preceding the accident. About two months of that time he was employed in drilling the blast holes into the face of the ledge of rock, and the rest of the time immediately preceding the accident he was what in the record is termed a "powder man." As powder man it was his duty to receive the powder at the quarry that was intended to be used for blasting purposes, see that it was safely stored in the powder house, and when it was needed for blasting, which occurred almost daily, he was required to take the powder from the powder house and deliver it at the holes that had been drilled into the face of the ledge. The powder was received and handled in cans, or what the witnesses term "kegs," containing twenty-five pounds each. It was also the duty of respondent to assist a Mr. Buck, who was the foreman at the quarry, to put the powder into the holes that had been drilled for the purpose of blasting. The foreman always indicated where the holes should be drilled, and they were usually drilled into the face of the ledge from twelve to sixteen feet in depth, and from two and one-half to three inches in diameter. Respondent, in substance, testified that on July 5, 1906, a certain hole had been drilled into the face of the ledge of rock about twelve feet deep and about two and one-half inches in diameter; that he got the powder at the powder house to charge the hole, and that he, together with the quarry foreman and one Randall, placed the powder into the hole in the usual manner by pouring the powder in first, and then placing earth on top of the powder and tamping it down; that there were four or five kegs of powder put into the hole in question, and in loading it, and, before the earth was put in, a cap was placed on the powder....