Hill ex rel. Hill v. Southern Pacific Co.

[100] A statement of the case as above having been made, BaRTCI-i, C. J., delivered the opinion of the court: The appellant, in the first instance, insists that the evidence fails to show, in accordance with the allegations of the complaint, that the candlesticks, which supported the car under which the plaintiff was injured, were defective, insufficient or unsafe, for the purpose for which they were being used, and ihat, therefore, the proof fails to justify the verdict and judgment. This was a question of fact to be determined by the jury, and "without referring to the evidence in detail, it suffices to say that there is some evidence in the record, tending to show that the candlesticks were defective and unsafe, for the use to which they were put, while there is also evidence tending to show that they were sufficient and safe for such use. The testimony being thus conflicting, and this being a case at law, we have no power to determine on which side the proof preponderates. Sec. 9, art, 8, Const. The question of the sufficiency of the evidence, in a case at law, to support a verdict or judgment, where there is some testimony to support it, is exclusively within the province of the trial court and the jury. Nelson v. Southern Pacific Co., 15 Utah 325; Harrington v. Eureka Hill Min. Co., 17 Utah 300. It is further insisted by the appellant, that the plaintiff was guilty of contributory negligence, in so forcibly jerking the wrench, while tightening the nut on the bolt, as to cause the car to sw^ay and fall upon him. That the injured party himself caused the car to fall upon him, is an assumption which we can not say is justified by the evidence.- It is true, the witness Sharp stated that the plaintiff was jerking the wrench and that he told him to pull steady, but on the other hand the plaintiff testified that he did not hear Sharp’s warnings, and that the nuts all worked perfectly easy, and that the [101] proof fails to show that more force was used than was necessary to perform the work to which he had been assigned. Then the evidence shows that the plaintiff was young and never had any experience at such work, having worked about the cars but one day — the day previous to the accident — and that he never had any experience in the use of such mechanical instruments until the morning he was injured. There is also evidence indicating that the ear fell because the candlesticks were insufficient to support it. TJnder this and other testimony, some of which is conflicting, it was clearly the province of the jury to determine whether or not the plaintiff was guilty of contributory negligence, and having determined this in the negative, upon conflicting evidence, their judgment is final. Nelson v. So. Pac. Co., supra. And in their deliberations upon this question they had a right to take into consideration his age, inexperience and any lack of knowledge or understanding of the risks incident to his employment, in the absence of any explanation to him of the dangers connected therewith, by his employer. “After all, it is not so much a question whether the party injured has knowledge of all the facts in his situation, but whether he is aware of the danger that threatens him. What avails it to him that all the facts are known if he can not make the deduction that peril arises from .the relation of the facts ? The peril may be a fact in itself of which he should be informed.” McGowan v. La Plata Min. & S. Co., 9 Fed. Rep. 861; 1 Shear. & Red. Neg., sec. 219; Anderson v. The Daly West Min. Co., 15 Utah 22; Roth v. N. P. L. Co., 18 Or. 205; The Louisville, New A. & C. R’y Co. v. Frawley, 110 Ind. 18; Hungerford v. C. M. & St. P. R’y Co., 41 Minn. 444. Nor can the position' of the appellant, that the injury sustained by the respondent was caused by his own negligence and that of his fellow servants in selecting, placing and ad [102] justing tbe candlesticks and blocks placed underneath tbe car, be upheld in view of tbe evidence upon this point. It is true, there is testimony tending to show tbe candlesticks and blocks were not placed properly under tbe car by tbe employees, and that this caused tbe car to fall, but then there is also evidence indicating that tbe candlésticks were unsafe from use and wear, and insufficient to support tbe weight of such a car, and that this caused tbe car to fall. As to whether tbe plaintiff bad any thing to do with tbe placing of tbe candlesticks under tbe car, the proof, as we have seen, is conflicting. Under such testimony as appears in this record, it was clearly tbe province of tbe jury to determine what was tbe proximate cause of tbe injury, and they must have found that the injury was occasioned because of defective candlesticks and blocks, or appliances, and not through tbe negligence of the injured or bis co-employees. Such being tbe fair inference of the action of tbe jury this point furnishes no ground for interference with tbe verdict, for an employer owes a duty to bis servant to use ordinary care and diligence to provide for use, in the service, such sound and sufficient appliances or instru-mentalities as are reasonably calculated to insure tbe safety of tbe servant in performing tbe service. Tbe employer is also bound to use ordinary care and skill to■ discover and repair defects in such instrumentalities, and to exercise reasonable caution and prudence to provide the servant a reasonably safe place in which to perform the service. If tbe employer fails in either of these respects and injury results to tbe servant because of such failure, the employer will be liable for tbe injury. 1 Shear. & Red. Neg., sec. 194; Hough v. Railway Co., 100 U. S. 213; Northern Pacific R. R. Co. v. Herbert, 116 U. S. 642; Illinois Steel Co. v. Schymanowski, 162 Ill. 447. Nor, under tbe evidence in this case, can we say, as is [103] insisted by the appellant, that the injury, received by the plaintiff, was one of the risks assumed by him when he entered the employ of the company. The respondent can not be held to have assumed the risk of defective and unsafe appliances, which the jury evidently found were the proximate cause of the injury. While a servant, upon employment, assumes all the ordinary risks thereof, he does not assume risks caused through the negligence of the employer. Whatever may be the real facts as to the exact cause of the accident and injury in this case, the evidence is of such a conflietifig character that we must regard the determination of the trial court and jury, upon the questions 'of fact, as conclusive. The questions presented by the assignments of error but not argued in the briefs of counsel, we do not feel called upon to discuss herein. The judgment is affirmed, with costs. Mmer and Bas-Icin, JJ., concur.