Valiotis v. Utah-Apex Mining Co.

• Decision Date: 10 October 1919
• Docket Number: 3299
• Court: Utah Supreme Court
• Parties: VALIOTIS v. UTAH-APEX MINING CO

184 P. 802

55 Utah 151

VALIOTIS v. UTAH-APEX MINING CO

No. 3299

Supreme Court of Utah

October 10, 1919

Appeal from District Court, Third District, Salt Lake County; R. B Porter, Judge.

Action by Dan Valiotis against the Utah-Apex Mining Company. Judgment for plaintiff, and defendant appeals.

AFFIRMED.

King Straup, Nibley & Leatherwood, of Salt Lake City, for appellant.

Olson &amp Lewis, of Salt Lake City, for respondent.

PRATT, District Judge. CORFMAN, C. J., and FRICK, GIDEON, and THURMAN, JJ., concur.

OPINION

PRATT, District Judge.

Plaintiff brought this action to recover damages for personal injuries sustained by him on October 10, 1916, while working as a miner for the defendant in its mine at Bingham Canyon, Salt Lake county, Utah.

Among other facts, plaintiff's complaint in substance alleges that on October 10, 1916, the defendant had provided as a means of ingress and egress to and from the working place of the plaintiff in said mine a certain manway consisting of wooden ladders extending vertically between two levels in said mine (the 1,300 and 1,200 foot levels) of a height of about 100 feet; that prior to and at the time of the injury to plaintiff the defendant negligently and carelessly caused and permitted one of the steps or rungs on said ladderway to be broken or loosened so as to afford no support for plaintiff's feet at that point; and that by reason of the said carelessness and negligence of the defendant the plaintiff, while descending said ladderway, on or about the 10th day of October, 1916, fell down the shaft or manway in which the ladderway was constructed, a distance of about eighty-five feet, and was thereby greatly and permanently injured, etc. Defendant's answer denies these allegations of the complaint, and alleges contributory negligence and assumption of risk on the part of the plaintiff.

The case was tried to a jury and resulted in a verdict and judgment for the plaintiff upon conflicting evidence. At the close of plaintiff's case, defendant moved for a nonsuit, which motion was overruled by the court. After verdict and judgment for the plaintiff, defendant moved for a new trial, which motion was also overruled by the court, and thereafter in due time defendant appealed.

The record discloses the following facts: Three shifts were employed in defendant's mine, each consisting of drillmen, timbermen, and muckers, and each shift being in charge of a shift boss. The first shift went to work at 8 o'clock in the morning, was relieved at 4 o'clock in the afternoon by the second shift, and the second shift was relieved by the third at midnight, which last shift worked until 8 o'clock in the morning. The change of shifts was effected in about one-half hour, so that the second shift, on which plaintiff worked at the time of his injury, went to work at about 4 o'clock in the afternoon and quit work at 11:45 at night, and the third shift began work about 12:15 a. m. On October 10, 1916, and for several months prior thereto, the three shifts, in turns, had been working in the mine on the 1,200-foot level, which level was reached from the next lower level, known as the 1,300-foot level, by means of the ladder in question. This ladder consisted of two by four inch uprights, on which were nailed two by four crosspieces, or rungs, a foot apart, the extremities of which rested in grooves in the upright sides and face of the ladder cut to a depth of one and one-half inches and of sufficient width to receive the rungs. There was some conflict in the evidence as to the size of the nails used to fasten the ends of the rungs into the grooves. The ladder was erected in sections, end to end, and stood vertically between the two levels to a height of about one hundred feet, in a shaft four feet eight inches square. In going to and returning from their place to work on the 1,200-foot level, the men were required to climb up and down this ladder, each carrying a light. Heavy timbers and drills were hoisted up through the same shaft, and it was shown that the timbers sometimes swung against the ladder and loosened the rungs, necessitating repairs. Timbers had been so hoisted some time during the afternoon of October 10th while plaintiff's shift was working on the 1,200-foot level. It was shown that the shift boss ordinarily followed his men in ascending the ladder when they went to work and preceded them in descending it when they quit their work, and that at lunch time it was his custom to descend the ladder to the 1,300-foot level and, after lunch, return to the place where his men were working. It was the shift boss' duty, and his practice, to order a timberman to make immediate repairs if he found anything wrong with the ladder. It was shown that the shift boss of the shift to which plaintiff belonged descended the ladder a few minutes before the accident. There was a conflict of evidence as to the condition of the ladder and, if defective, as alleged in the complaint, as to how long such defect had existed, as bearing upon the question of whether or not the defendant had constructive notice of it.

Plaintiff testified that as he climbed the ladder on the afternoon of the accident he did not notice any loose rungs, but that on leaving his work that night and climbing down the ladder he stepped on a loose rung about thirteen feet from the top, felt it give way, and he fell to the bottom, receiving certain injuries which he described.

The plaintiff having introduced his evidence tending to prove his cause of action as alleged (unless it was not shown that defendant had notice, either actual or constructive, of the defective condition of the ladder which caused plaintiff to fall), the defendant moved for nonsuit and contended in the lower court, and contends here, that it was not shown that defendant had notice, actual or constructive, of the defective condition of the ladder. The court overruled the motion, and this ruling of the court is assigned as error by the appellant.

Counsel for appellant contend that the only evidence having any tendency to prove either actual or constructive knowledge on the part of the defendant of any defect in the ladder was given by Nick Katrinas, a fellow workman of the plaintiff, who testified that he (Katrinas) had observed loose rungs in the ladder for three or four days prior to the accident and also on the day of the accident. But, say counsel, this witness was self-impeached by the typewritten statement which he admitted having signed and which he made to the defendant company in March, 1917, concerning the accident, in which the witness said that the ladder was "in good condition and no rungs were broken." This statement was introduced as Exhibit 1 on cross-examination of the witness. He testified that he did not know at the time of signing it that it contained such a statement of fact; that that part of the exhibit wherein it is stated that the ladder was "in good condition and no rungs were broken" had not been read to him; and that he could not read. "It was untrue," said the witness. This testimony on motion for nonsuit must be assumed to be true. Exhibit 1 was not competent proof of the facts stated in it and was not and could not be used as such. It was competent and material for the purpose of impeachment only. It raised, therefore, merely a question of the credibility of the witness, a question for the jury to decide and not for the court. As the evidence on behalf of the plaintiff tended to prove the cause of action alleged by him, and on motion for nonsuit the trial court must give to the plaintiff the benefit of every fair and reasonable inference that might properly be drawn from the evidence by the jury, the court did not err in overruling the motion for nonsuit.

Appellant complains of certain parts of the court's charge to the jury, to none of which did appellant reserve an exception except to paragraph 7 of the charge, which reads as follows:

"If you find by a preponderance of the evidence that the defendant neglected to exercise reasonable care and diligence to maintain said ladder way described in plaintiff's complaint, in a reasonably safe condition, and that, by reason of said negligence on the part of the defendant, one of the rungs of said ladder, at or about a point thirteen feet from the top thereof, became so loose and insecure that it gave way under the weight of the plaintiff, as he stepped on it, while proceeding to descend the ladder, on or about October 10, 1916, thereby causing the plaintiff to fall down the manway, and sustain injuries as alleged in the complaint, your verdict should be for the plaintiff, unless you find by a preponderance of the evidence, that the plaintiff was himself guilty of negligence which proximately contributed to the injury, or unless you find that the plaintiff assumed the risk arising from such negligence of the defendant, as in these instructions explained."

Read and considered in connection with the entire charge, we fail to find prejudicial error in this instruction. But it is contended by counsel that this instruction and others given were contrary to defendant's requests Nos. 2 and 6, which the court refused to give. Those requests, refusal to give which is assigned as error, read as follows:

No. 2. "You are instructed that the plaintiff has not made out a case by merely showing that the step or round of the ladder was loose or broken. He is required to further show by a greater weight of the evidence that the defendant or its agents and officers whose duty it was to examine and repair the ladder, knew, or in the exercise of ordinary care could have known (of such condition), for a sufficient length of time prior to the accident, to have repaired the defect and have avoided the injury."

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