Grandin v. Southern Pac. Co. , 30 Utah 360 ( 1906 )

BARTCH, C. J.

(after stating the facts).

The decisive question presented is whether the plaintiff has shown any right of recovery. The appellant contends that, having aided in the construction of the temporary contrivance to unload the battery houses, the injured had actual knowledge of the means employed in the service, and, as the dangers connected therewith were open and obvious^ and as he voluntarily, without objection to the means employed, undertook to perform the service, he assumed the consequent risk of injury; that the defendant’s motion for nonsuit, based upon a failure of plaintiff’s proof to establish a prima, facie case, ought to have been granted; and that the court, having denied the motion, ought, at the close of the entire testimony, have granted defendant’s request to instruct the jury to return a verdict for the defendant.

TJpon careful examination of the evidence disclosed by the record, we are of the opinion that the appellant’s contention is well founded. The unloading of the battery houses was in the regular line of service which the plaintiff was employed to perform. His duties related generally to all kinds of the material that might be in, or shipped into; the yard. His employer was a common carrier engaged in the business of receiving and transporting all kinds of goods, implements, and material, and, in the absence of evidence showing the contrary, we must assume that the respondent was a man of average understanding and knowledge of things about him, and capable of appreciating the obvious dangers connected with the duties he undertook to discharge. Át the time of the accident, he had been in that service for three months, knew what its nature was, and must have known that there was more or less risk of injury incident to the service. Such hazards, as are merely incidental to the business, the servant and the master are supposed to have taken into’ consideration in the negotiations respecting the employment. The fact that this was the first occasion on which battery houses had been received into the company’s yard is immaterial, because the very nature of the service suggests that the employees must at times handle materials and appliances which are different from those usually received and handled. Doubtless, there are occasions, like the one in this instance, when, in order to load or unload such material, the construction of improvised means becomes necessary to perform the service. In such cases, the employees, who voluntarily assist in providing such.means; for performing the service more conveniently, and continue, without objection, to perform it according to the method adopted by them, or tbeir employer, assume the risks of danger incident thereto, including the negligence of co-employees, when the employer, in the latter case, has exercised proper diligence in the selection and retention of co-employees. It is not claimed that the company neglected it? duty in this regard. The objection relates merely to the means used in and the manner of performing the service. But, whether or not the best method was employed, the plaintiff assisted in constructing the platform and incline, observed the kind of timbers that were used for skids and sills, knew all about the construction, its temporary character and use to which it was to be put, and assisted in making use of it, including the truck, in unloading the houses, and while making use, without objection or even a suggestion of insufficiency, of the very means he helped to provide, he was accidentally injured. The whole thing was open to his observation and knowledge. Whatever dangers were connected with the manner of performing the service were, at least, as open and obvious to him as to his employer, and he had an equal opportunity to observe them; he having assisted in unloading, from the same car, a number of houses, in the same way and with the same means, just previous to the injury. And there is evidence indicating that the immediate cause of the accident was the negligence of colaborers — fellow servants, who, it seems, heedlessly pushed the house that fell over too hard after the tongue was removed from the truck. Such facts and circumstances as are here disclosed show no liability on the part of the employer, and consequently no right of recovery on the part of the employee. In a case like the one presented by this record, where the servant, of his own volition, consents to perform the service according to the method adopted, the same being open and obvious, the law is that the servant assumes the risk of the dangers incident to and connected with the performance of the service in such manner.

In Dunn v. Railroad, 28 Utah 478, 80 Pac. 311, a gang of section laborers constructed a temporary platform with ties and plank for the purpose of loading a car with ties. Tbe platform- was- constructed in the absence of the plaintiff, "but afterwards be, in common with other laborers, without objection, used it in loading the car with ties, and, after having so used it for about two hours, he slipped on the platform, fell, and received injuries for which he brought suit. The record there presented a case much like the one at bar, and this court, in passing upon it, said:

“If, under such facts and circumstances as are disclosed by this record, an employer would be liable to an employee in damages, it would seem difficult to conceive of a case of accidental injury where the employer would not be liable. That this is one of those unfortunate accidents, in which there is no responsibility on the part of the employer, we entertain no doubt. It is clearly a case of an assumed risk incident to the employment. We are aware of the general rule that, where a master employs a servant, he must exercise ordinary care to furnish the servant a reasonably safe place in which to perform the service, and a failure to do so will render the master liable for any injury to the servant resulting from such failure; but in this case we can perceive no violation of the rule that can avail the respondent, who, we have a right to assume, in the absence of evidence to the contrary, was a man of average understanding and knowledge of things about him. We cannot say from the proof that the place was not reasonably safe, but, if it was not — if it was dangerous — the danger was open and obvious, and the employee could easily observe it. Whatever hazard was connected with the loading of the ties was equally open and obvious to the employee sis to the employer, if not more so; and, if there was anything unsafe about the platform, the exercise of ordinary care would have revealed it to the employee. He having voluntarily engaged in such service, concurring in the use of the contrivance, observing its construction and temporary character, and, as a man of ordinary understanding and knowledge, aware of the dangers incident to the employment, and having, of his own volition, undertaken to perform the service in that way, must be held to have assumed the ordinary risks of injury incident to that service, including the risk of the injury in question, and cannot now be heard to complain.”

And, in that case, upon the question of reasonably safe place to perform the service, Mr. Justice McCarty, observed:

“While it is a duty the master owes to his servant to furnish him with a reasonably safe place in which to perform his work, the master is not bound to anticipate and guard against every conceivable kind of accident or misfortune that might occur. The appellant in this case was only required to use that degree of care and diligence in the construction of the runway and platform that a reasonably cautious and prudent man, understanding the dangers and hazards of the employment, would use under the same or like circumstances. The master cannot he expected, nor is he required, to anticipate and guard against every conceivable kind of accident and misfortune that might happen to the servant in the performance of the work; yet, if the respondent can be permitted to recover in this case, it would be difficult to fconceive of a set of circumstances under which a master would not he liable to his servant for injuries sustained because of an accident to the servant while in the performance of the work required of him. The platform and runway were simple devices, temporary in character, and plainly observable, and to me it is incomprehensible how it was possible for respondent to go up this runway and onto the platform every few minutes for a space of two hours, and not become aware of the nature and character of their construction.” (Cooley on Torts, 634-636; Roth v. Eccles, 28 Utah 456, 79 Pac. 918; Christienson v. R. G. W. Ry. Co., 27 Utah 132, 74 Pac. 876, 101 Am. St. Rep. 945; Higginns v. Southern Pac. Co., 26 Utah 164, 72 Pac. 690; Sullivan v. India M. Co., 113 Mass. 396.)

Entertaining the conviction that the plaintiff has shown no right of recovery, we do not deem it important to discuss or pass upon any other question presented.

The judgment must be reversed, with costs, and the ease remanded for further proceedings in accordance with law» It is so ordered.

McCAETY, J., concurs.