Virend v. Utah Ore-Sampling Co.

• Decision Date: 19 September 1916
• Docket Number: 2918
• Citation: 48 Utah 398,160 P. 115
• Court: Utah Supreme Court
• Parties: VIREND et al. v. UTAH ORE-SAMPLING CO

160 P. 115

48 Utah 398

VIREND et al. v. UTAH ORE-SAMPLING CO

No. 2918

Supreme Court of Utah

September 19, 1916

Appeal from District Court, Third District; Hon. T. D. Lewis, Judge.

Action by Annie Virend, Sr., and Annie Virend and others, minors, by their guardian ad litem Annie Virend, Sr., against the Utah Ore-Sampling Company.

Judgment for defendant.

From a directed verdict, the plaintiffs appeal.

AFFIRMED.

Morgan Huffaker & Bradford and E. A. Walton for appellants.

King &amp Nibley and P. T. Farnsworth, Jr., for respondent.

FRICK J. STRAUP, C. J., and McCARTY, J., concur.

OPINION

FRICK, J.

The plaintiffs Annie Virend, as the wife of one Frank Virend, deceased, in her own right, and as the guardian ad litem of Annie, Frank, Christina, and Rose Virend, minor children of said first-named Annie Virend and Frank Virend, brought this action to recover damages, which it is alleged all of the plaintiffs suffered by reason of the death of the deceased husband and father. In the complaint, after alleging the relationship of the plaintiffs to the deceased, and that at the time of his death he was in the employ of the defendant in its oresampling mill and that he was employed about an ore crusher with an unguarded flywheel, etc., it is then alleged that the deceased came to his death by reason of the negligence of the defendant. The negligence that is relied on by the plaintiffs is stated thus in their printed abstract:

"That it (the defendant) negligently failed to provide the deceased with a reasonably safe place in which to work, that it negligently and carelessly failed to warn and instruct the deceased in respect of the danger of said work, and that it negligently failed and omitted to have and maintain a guard rail or other protection at and about said flywheel."

The defendant, in its answer, after admitting the relationship of the parties and that of master and servant, denied all acts of negligence, and as affirmative defenses pleaded contributory negligence and assumption of risk.

We remark here that there is no evidence in the record supporting the second ground of negligence above stated. Plaintiffs' evidence upon the other branches of the case tended to prove the following facts: The deceased, on the 23d of June, 1915, the day of the accident, was engaged in operating an ore crusher in defendant's sampling mill. The crusher was on an upper floor in the building and at the time was crushing what the witness call "copper matte," which is a substance that is hard to crush. The crusher consisted of two horizontal corrugated rolls which revolved toward each other, and in that way crushed the material which was run into a hopper located over the two rollers. A witness for the plaintiff, stating his evidence in the language of the printed abstract furnished by the plaintiffs, described the operation of the crusher as follows:

"In keeping the rolls clear, the men used an old steel drill about three feet long and three-fourths inches in diameter, with a head put on it so that the men could drive it into the rolls without the rolls catching the bar. When I saw the deceased lying there I saw the bar lying on the platform back of him, towards the wall, which would be to the left as indicated by the drawing. I have cleared rolls and kept them clear during such operations. These rolls had small corrugations, about one-eighth inches. They were both the same size; about eight inches in diameter and twenty inches long, and operate very close together, one roll being set on heavy springs, so that it will give a little, about half an inch, and thus accommodate itself in some degree to the size of the rock to be crushed. It is necessary to have a man watch the rolls, because the matte is hard and slick, and if the chunks are a little large they ride the rolls to the end of the cheek plate and the rolls don't bite them. The duty of the operator is to hit the pieces that won't go through and drive them through; hit them hard enough so that the rolls will bite them. In so doing it is possible for the rolls to bite the bar. In my experience in that mill I have had the bar taken away from me and drawn through the rolls. When the bar is in use its direction is on a slant from the perpendicular, and if jerked hard by the rolls it will go through, and even if not jerked so hard as to be pulled through, it is bound to jerk a man and pull him around. When I saw Mr. Virend lying there dead, the bar was lying behind him, probably two feet away from the crusher, and about a foot from the body, which was lying between the bar and the machine. The bar, when not in use, was usually kept standing up in the corner and not in that particular place where it was found. The platform is about three feet wide from the front of the roll to the east wall of the mill, and about four or five feet from stair to stair."

The witness, again quoting from the abstract, on cross-examination, said:

"Prior to his death, Virend had been working about three years in the plant, and for a year it had been a part of his business to watch or work about the crusher at which this accident occurred. Prior to that time he at times worked about the crusher. He worked about that crusher more than any one else. The accident occurred at about eight o'clock in the forenoon. It was light, and there are outside windows about 4 1/2 feet from the crusher. The crusher had been there with the flywheel and the railing and other things immediately about it in that same condition during all the three years the deceased had worked in the mill. There was no difficulty in seeing the conditions there. W...