Cook v. United States Smelting Co.

STRATJP, J. Tbe plaintiff brought this action to recover damages for personal injuries alleged to have been sustained by bim by tbe negligence of the defendant. It was alleged in tbe' complaint: That tbe defendant was engaged in tbe business of smelting ores, and in connection with its smelter it maintained and operated electric motors and cars upon and over a trestle and platform erected in one of its buildings ; that tbe plaintiff, a boy sixteen years of age, was in its employ and was required to couple and uncouple cars and open and close switches; that it was tbe duty of tbe defendant to inclose tbe platform by a suitable fence, to keep it free from rock and slag, to light tbe premises, to furnish tbe plaintiff suitable switch bars and appliances, and to cause the motor, upon which tbe plaintiff was required to ride, to come to a full stop before be alighted therefrom to open and close switches; that these duties bad not been performed; and that by reason thereof the plaintiff, while engaged in the prosecution of his work, and in alighting from a motor and running along the track to open a switch in advance of the engine, stepped upon broken rock or slag and was thrown from the platform and trestle a distance of about thirty feet and was injured. The answqr contained a general denial and pleas of contributory negligence, fellow service, and assumption of risk. The case was tried to the court and a jury. A verdict was rendered, and a judgment entered for plaintiff, from which the defendant has appealed. At the conclusion of the evidence the defendant requested the court to direct a verdict in its favor. In passing on the motion the court ruled that the case should be submitted to the jury only as to the issue of the defendant’s alleged negligence in failing to have the premises sufficiently lighted, but — 194 — from the instructions it appears that the court submitted to the jury, also, the issue as to the defendant’s alleged negligence in not keeping the track and platform reasonably clear of rock and slag. The appellant contends that the court erred in submitting the case to the jury on either issue, on the grounds that the evidence was insufficient to-show negligence on the part of the defendant, and that the plaintiff assumed the risk. ’Vt'e think the contentions; are well founded. The evidence shows that it was- the duty of the plaintiff to couple and uncouple cars, open and close switches, load and unload cars. The cars were propelled by an electric motor. When the plaintiff was required to do switching, his position was at a place on the front part of the motor,, which was about two feet from the floor of the platform. In the ordinary discharge of his duties he was required to alight from the motor while it was in motion and to run in advance of it to the switch required to be opened or closed, and that such was the usual way of doing the work. The line of road over which the motor cars were operated extended a short distance from a briquetting machine, and upon a trestle and platform constructed in a building about 250 feet in length. The platform of the trestle was planked, and was six and one-half feet wide and about twenty-five-feet above the ground floor. The west side of the platform extended to a blind board wall. The east side was open, except for a guard rail which was about three feet above the floor of the platform. There was more or less smoke-in the building caused by the smelting operations. Lights were -placed about the trestle and along the track short distances apart. The motors were also1 equipped with headlights consisting of thirty-two candle power lamps throwing a light 150 feet along the track. There was a light at the south entrance of the building about twelve feet above the platform of the trestle. Seventy-seven feet from the entrance Avas an are light hanging underneath the west rail of the track. Farther along there Avere two other arc lights also hanging underneath the track. There was a light — 195 — near the place where tbe plaintiff alighted from the motor. There was also a light about forty-five feet from the first arc light, and about fifteen and one-hal'f feet beyond the switch which the plaintiff was about to open. There were-other lights about the' trestle and along the track about eighteen feet apart. On the day of the accident the plaintiff.’ had worked a shift of eight hours. The accident happened! in the evening at about 6:30 o’clock in the month of December. The plaintiff had just entered upon a second half! of another shift. The motorman and plaintiff started! from the briquetting machine, which was a short distance south of the building and the trestle, with cars loaded with brick. The loaded cars were moved about the track and were left on a switch or spur track. The plaintiff and the motorman then started through the building with the motor. A loaded train, which had the right of way, followed them. Another train was in front of them, on another connecting track, near the north entrance of the building. Cars loaded with rock and slag were continually operated along the track. Pieces of rock and slag fell from them and were scattered along the track and platform. Sweepers were .employed by the defendant to sweep the track and remove them. As the plaintiff and the motorman approached the building, the plaintiff called to the motorman to turn on the lights of the motor. The motorman attempted to do so, but the lights would not burn. The light at the south entrance of the building was also out. About sixty feet from the entrance* the plaintiff alighted from the motor, which was running' between two and three miles an hour, and ran ahead of it, to-throw a switch. The light at this point and the light a few feet beyond the switch were also out. The plaintiff and the motorman testified that on account of. these lights being out the track was not plainly visible. The plaintiff testified he-could see well enough to walk along the track, but he could not see the pieces of rock and slag. He further testified-, that: “As I was jumping off to turn this switch, I had-, only run a few feet when I stumbled over some ore or rock,, and it threw me headlong over the side of the trestle, and! — 196 — I fell to tbe ground about thirty feet below.” On direct examination be was asked, and be answered: “Q. Now, when you jumped off tbe motor and started to run ahead and move tbe switch, you say you slipped on something? A. Yes, sir. Q. What was it that you slipped on, as near as you can tell? A. Well, rock or slag. Q. Was there a good deal of rock and slag there that night?' A. Yes, sir. Q. It had not been swept away ? A. Well, there was more rock there then than there was at other times when we went through there. Q. It hadn’t been swept by the sweeper? A. I don’t think it had; no, sir. Q. Was it dark that night ? A. Yes, sir.” Cross-examinationQ. Is that about the way the track looks as I show you now on Exhibit 3 (a photograph) at the switch with reference to the debris and stuff on the track?' You can see it scattered about there?’ A. Yes, sir. Q. In that loose sort of a wav ? A. Yes. Q. Small pieces scattered here and there? A. That is generally the way it is. Q. And it was so all the time you were working there,, wasn’t it? A. Yes, sir; there was some on there. Q. You never saw it entirely free, did you? A. I don’t think so. Q. The rattle of the motor and the rattle of the trains as they passed there would continually drop' off stuff there? A. Yes, sir. Q. Now you say you slipped? A. Yes, sir. Q. On a piece of slag or rock?’ A. Yes, sir. Q. Did you strike your foot and stumble? A. No, sir; I stepped on a piece of rock or slag. Q. Did it turn your foot ? A. It just threw me out that way. Q. And you fell over did you? A. Yes, sir; I fell that way. Q. Where did you strike first?' A. Well, I just struck the outside of the platform. Q. Now, before you got off the motor, or were getting ready to get off the motor, could you see the switch ahead of you ? A. Yes, sir. . . . Q. Now you cannot tell exactly what caused you to stumble, can you? A. No, sir. Q. Except that you stepped on something %r A. Yes, sir; I stepped on something. Q. And that either turned your foot or made you slip-, and in some way lose .your balance so that you pitched over? A. Yes,, sir. Q. — 197 — Was that immediately after you alighted and started to run? A. Yes, sir. Q. You jumped ahead of the motor with considerable force I suppose to get a good start? A. Yes, sir. Q. And you were on the jump? A. Yes, sir; I jumped down and just started to run. Q. Well, did you strike' your foot as you struck the ground, or had you taken a step or two ? A. I had taken a step or two. Q. You knew that you might expect to find pieces of slag or ore scattered over there as these pictures show ? A. Some; yes, sir. Q. And if there was more, a man walking there, or running there, he might possibly hit his foot on a piece ? A. Yes, sir. Q. Whether there was much or little he might do that, he might hit a piece with his foot, is that true ? A. Yes, he may.” There is no evidence showing the size or character of the rock or slag upon which the plaintiff stepped, of the quantity of it along the track, except as made to appear by the photograph. Looking at the exhibit, it appears that small particles of broken rock and slag were scattered here and there along the track. The photograph shows the track and platform substantially free from obstructions and particles of rock and slag which would ordinarily interfere with one’s walking or running along the track. We recognize the difficulty there is in accurately judging the size and character of the rock and slag from the exhibit, but that is all the evidence there is upon the question. Aside from that, the evidence merely shows that the plaintiff slipped by stepping on a piece of rock or slag, without any description as to its size or character, or the quantity along the track, except as testified to by him that there was a good deal along the track and more at the time of the accident than at other times. Of course, one walking or running along the track may slip and fall by stepping on a mere pebble or a small piece of broken rock or slag, but no one would contend that the presence of such a thing rendered the premises ordinarily dangerous or unsafe. The defendant was not obliged to guard against mere accidents. It was not required to keep the track and platform absolutely — 198 — clear of all particles, no matter bow small. Snob a requirement, from tbe nature of tbe business, was neither practicable nor really possible. Tbe defendant was required to keep tbe platform and track’ reasonably clear and free from sueb things and particles as might be expected to ordinarily interfere with one in passing along tbe track and cause injury by bis coming in contact with them. Tbe plaintiff having failed to show tbe size or character of tbe rock or slag upon which be stepped, or the quantity along ’the track, be has furnished no basis upon which tbe conclusion is authorized that by reason of tbe presence of tbe rock or slag along tbe track tbe use of the premises in walking and running along tbe track was rendered unsafe, or that tbe plaintiff vras exposed to danger which ought to have been anticipated and guarded against by tbe defendant. Tbe mere proof that there was some rock or slag along tbe track, and that plaintiff stepped on a piece of it and slipped, is not sufficient. This brings us to tbe question of tbe alleged negligence of tbe defendant in failing to have the premises sufficiently lighted. It was incumbent on tbe plaintiff to show that tbe defendant owed him a duty to light tbe premises, that tbe duty was not performed, and that such dereliction of duty was tbe proximate cause of plaintiff’s injury. It may be assumed that from tbe character of tbe work carried on by tbe defendant, and tbe duties exacted of tbe plaintiff at tbe place in question, tbe trier of facts may say that there were such attending dangers as to require tbe defendant to properly light tbe premises to render them reasonably safe, and to enable tbe plaintiff to do his work with reasonable safety. Had tbe plaintiff shown that be came in contact with some object or thing which tended to obstruct tbe free use of tbe platform, and which ordinarily could have been avoided by him bad tbe premises been properly lighted, be might have been entitled to have tbe issue as to tbe defendant’s negligence in this respect submitted to tbe jury; but be has wholly failed to show that bis injury was occasioned by coming in contact with such an object. Had be shown — 199 — that the broken rock or slag upon which he stepped was of such size or character, o-r the material of such quantity, as likely to cause one to slip' or stumble by coming in contact with it and without seeing it, the case would be different.In such case it might well be said that had the premises been sufficiently lighted the plaintiff could have discovered-the presence of the danger, and could have avoided it. Plaintiff having failed to show the character or quantity of broken rock and slag along the track, he has not shown that, by reason of the premises not being sufficiently lighted, he was exposed to any danger on account of the presence of the rock or slag. Having failed to describe the character of the thing which caused his injury, no basis was furnished for determining whether it was of such nature that the defendant, in the exercise of ordinary care, should have anticipated that an injury was likely to result by coming in contact with it, and that therefore a duty was owing from it to light the premises and guard against it. It is not sufficient to say that if the premises had been properly lighted plaintiff could have seen the rock and slag and avoided it. That is assuming the very thing which the plaintiff failed to prove, which is that the rock and slag was of such character as likely to interfere with one’s walking or running along the track. Proving that he stepped on a piece of rock or slag and slipped is not sufficient, unless it can further be said that the defendant was required to keep the track and platform free from all particles of rode or slag, no matter how small, and whether they would or would not likely interfere with one in the discharge of dirties performed by plaintiff. In this connection, it is suggested that, by reason of the insufficient lighting of the premises, the defendant ought to have anticipated that injury of some sort might likely result in passing along the platform and by stepping on or stumbling over obstructions about the track, and that it was not essential to liability that the defendant should have foreseen that injury would result in the form or way in which it did in fact happen. That is all very true if the plaintiff had shown that the presence of the rock or slag was — 200 — of such character as to constitute an obstruction to or an interference with passing along the track, or was something over which one was likely to stumble and f¿11; but how can it be said that the defendant ought to have anticipated that an injury would likely result by stepping on something which is not described nor characterized, except that it was a broken piece of rock -or slag ? The defendant was only required to anticipate and guard against contingencies likely to occur, and not against those which are unusual or outside of the range of ordinary experience. Without characterizing the thing upon which plaintiff stepped and slipped, we cannot see how a jury was authorized to draw the conclusion that the defendant ought to have anticipated that an injury would likely result by coming in contact with it, and that hence the defendant ought to have guarded against it by lighting the premises, or by removing it. We are further of the opinion that the evidence was insufficient to show negligence on the part of the defendant in failing to have the premises sufficiently lighted, because of the want of evidence that the defendant had either actual or constructive knowledge of such abnormal condition of the premises. No complaint is made that the defendant was guilty of negligence in not furnishing or providing proper or a sufficient number of lights. Its duty, of course, was a continuing one, and it was not only required to furnish sufficient lights in. the first instance, but it was also required to exercise ordinary care to maintain the lights in repair and in reasonably good condition. The only evidence to charge the defendant with negligence in this respect was that at the time of the accident three or four lights along tire track were out, and that the lamps on the motor did not burn, by reason of which the premises were insufficiently lighted. The other lights about the building were burning. What caused the lights to be out, or how long they had been out, is not shown; nor is it shown that the defendant had knowledge of such fact. There being no evidence that the defendant had actual' knowledge that the lights were out, or were defective or out of repair, and there also — 201 — being no evidence to show bow long they had been out, or what caused them to be out, and there being no other facts and circumstances shown from which a finding is authorized that the defendant, in the exercise of ordinary care, ought to have known that they were out, or in a defective condition and not likely to burn, or that it knew, or ought to have known, of the abnormal condition of the premises, no basis was furnished to authorize the conclusion that the defendant was guilty of negligence in such respect, unless it shall again be said that its negligence is sufficiently shown by the mere proof that the lights were out, and that the premises were not, for that reason, sufficiently lighted. To lay down such a rule is, in effect, to make the defendant an insurer. While it was not essential on the part of the plaintiff to show what caused the lights to be out, he nevertheless was required to show some facts or circumstances from which the conclusion is authorized that the lights were out and the premises left in darkness because of the defendant’s want of ordinary care. The defendant was only chargeable with defects or abnormal conditions which were known, or ought to have been known to it in the exercise of ordinary care. If the plaintiff had introduced any evidence which fairly tended to show that the defendant had either actual or constructive knowledge that the lights were out, or in a defective condition, or that the premises were insufficiently lighted, the question as to its negligence in that respect would have been properly submitted to the jury. In the. absence of such facts, the question ought to have been taken from the jury. (Labatt, Mast. & Serv., secs. 119, 139.) We are also of the opinion that a verdict ought, to have been directed for the defendant on the ground of plaintiff’s assumption of risk. He stated that he was familiar with the condition of the premises and the work for which he was employed. He knew the lamps on the motor were not burning, and that three or four of the lights along the track were out. He knew the light was out about the place where he jumped from the motor and ran along the track. He knew it was dark, and that he could not distinctly see the — 202 — track • lie also testified that he knew pieces of rook and slag were scattered along the track and platform, and that they never were entirely free from snch material, and that on this occasion there was more rock and slag scattered along the track than at other times. His knowledge of these things does.not rest on inferences and deductions to be drawn from other facts and circumstances, but upon his own positive and direct testimony. If it shall be assumed that rock and slag of such character or quantity were scattered along the track as to ordinarily interfere with one passing along the track, the plaintiff must be held to know that one running along the track in the dark was likely to step on or stumble over some of it. In this connection, however, it is urged that an employee only assumes the perils and risks ordinarily incident to the employment, and that he does not assume the perils or risks occasioned by the negligence of his employer. It is frequently said that the servant has the right to presume that the master has used due diligence to provide a reasonably safe place in the operation of his business, and to enable the servant to perform his work with reasonable safety, and that he does not assume the risk of the employer’s negligence in performing , such duties. Such statement is, however, qualified with the further statement, unless the servant has knowledge that the duty has not been performed, and comprehends and appreciates the perils to which he is exposed, or that the attending danger is so obvious that such knowledge may be presumed. In the case of Merrill v. Railroad, 29 Utah 281, 81 Pac. 89 (110 Am. St. 695), we said: “In entering his employment the servant has the right to assiune that the master has used ordinary care with respect to the performance of his primary and postive duties, and the servant does not assume the perils and risks occasioned by the negligence of the master in his failure to perform these duties, unless the servant has actual or presumptive knowledge that these duties have not been performed, and the perils and risks arising therefrom, and to which he is exposed, are known to him, or are so obvious that knowledge may be presumed, and with such knowledge — 203 — be accepted or continued in bis employment without complaint or -protest.” Tbis is but tbe statement of tbe law as announced in Railroad Co. v. McDade, 191 U. S. 68, 24 Sup. Ct. 24, 48 L. Ed. 96, and in Railway v. Archibald, 170 U. S. 671, 18 Sup. Ct. 777, 42 L. Ed. 1188, and tbe principle applied in tbe case of Leach v. Railroad, 29 Utah 285, 81 Pac. 90, 110 Am. St. 708. Tbe fact that tbe lights were out and tbe premises not sufficiently lighted were well known to plaintiff. He had full knowledge of tbe abnormal condition of tbe premises. Tbe further question is: Hid he know and appreciate tbe danger to- which be was exposed in consequence of such conditions? To say that be did not is to say that be did not appreciate tbe ordinary consequences of running along tbe track in tbe dark knowing tbe condition of tbe premises, as testified to by him. True, tbe plaintiff was but sixteen years of age, and bis comprehension and appreciation of danger is not to be measured by tbe standard of an adult, but by one of bis age, capacity, and experience. It, however, ought to be conceded that- there are consequences of some acts, and that there are some dangers, which an ordinarily intelligent sixteen-year-old boy would readily comprehend and appreciate. Tbe plaintiff certainly appreciated tbe difference between light and darkness, and that the likelihood of slipping or stumbling while running in tbe dark was greater than if tbe premises bad been, properly lighted. If, again, it shall be assumed that tbe rock and slag with which tbe plaintiff came in contact were of such character as likely to cause one to stumble or slip, and that tbe defendant was chargeable with a breach of duty in failing to guard against such a danger by having tbe premises properly lighted, tbe consequences of running along tbe track in tbe dark with knowledge of tbe presence of tbe rock and slag is something of such a common and general experience that an ordinary sixteen year old boy would quite as readily comprehend as an adult. We do not gee how reasonable minds could differ on such a question, or arrive at different conclusions. It, however, is further suggested that-, though tbe plaintiff knew it — 204 — was dark, “he did not know that the defendant through its sweepers had neglected its duty, and failed to sweep the platform,” and that plaintiff may have been prevented from appreciating the extent of the risk created by the insufficient lights, because of the loaded train following the motor upon which the plaintiff was, and because of his pressing duties. The difficulty with this suggestion is that the evidence does not support the premises upon which it is founded. If it had been made to appear that the plaintiff had no knowledge of the presence of the rock or slag along the track, it might be said that he had the right to assume that the track was clear of such obstructions, and that he was not chargeable with knowledge that he was exposed to such a danger; but, when a sixteen year old boy has actual knowledge of the existence of something, he, no more than an adult, may rightfully assume the absence of it. It may also be true that, because of pressing duties or other circumstances, one may not have in mind, at thev moment, the existence of a danger previously known, or, because of necessary haste or excitement and confusion arising from emergencies, he may not at the time fully realize the danger to which he is exposed. The record, however, does not disclose such a state of facts. The plaintiff did not testify that he did not have in mind the presence of the rock or slag along the track, or that because of haste or confusion, or for any other reason, he did not realize or appreciate the danger to which he was exposed. His testimony, we think, shows quite the contrary. We are therefore of the opinion that on both grounds urged by the appellant the case ought to have been taken from the jury- The judgment of the court below is therefore reversed, and the cause remanded for a new trial; costs to appellant. THICK, J., concurs.