Fazio v. Corey Bros. Construction Co.

McCABTY, C. J. Plaintiff brought this action to recover damages for personal injuries which he alleges were caused' through the negligence of the defendant, Corey Bros. Construction Company, a corporation organized and existing under the laws of this state, with principal office in Ogden, Utah. A trial was had to a jury, which resulted in a verdict in favor of plaintiff for $1600. From the judgment rendered' on the verdict, defendant appeals. The facts, over which there seems to be no controversy, are as follows: During the month of December, 1907, respondent was in the employ of appellant, which was engaged in constructing a railroad bed near the town of Gameill, State of Montana. On the 27th day of that month appel — 122 — •lant bad several men, wbo are referred to in the evidence as the powder gang, engaged in blasting rock, boulders, •along the right of way. The weather being, very cold, the dynamite was frozen. In order to use the dynamite it was necessary to thaw it out. The method employed in thawing the ■dynamite was to build a fire, and around the fire to set a row of rocks in a circle, and on the inside of the circle, between the rocks and the fire, place the dynamite so that it would receive the heat and thaw out. One Decampo, an Italian, was what is called the “powder man.” It was his duty to attend to the fire, arrange the rocks, and place the dynamite near the fire where it would thaw out. It was also his duty to mix mortar, which was used for blasting purposes. That is, Decampo would take the dynamite after it was thawed, place it on the rocks, cover the dynamite with mortar, explode the dynamite, and break the rocks. Despondent worked with De-campo and the other members of the powder gang as helper. The duties of the helper were to carry powder, tools, and wood, and to do work generally of that character. A helper is not required, nor is he expected, to be an experienced hand in drilling or in the use of dynamite. On the occasion in question respondent was directed by the foreman in chargp of the work to assist Decampo. , One of the respondent’s duties was to carry sand from a steam shovel some distance from the fire above mentioned, to where Decampo was mixing mortar, and near the place where he was thawing dynamite. Despondent, who was an Italian, came to this country from Italy in 1904 or 1905, and was 19 years of age when he received the injuries alleged in his complaint. He did not understand the English language, and had had no experience in handling or using dynamite. He was not advised by appellant, or anybody else, of the danger of working in the vicinity of and in close proximity to the place where dynamite was being thawed and used. On this point respondent testified (and his testimony is not disputed) in part as follows: “I did not handle dynamite . for Corey Bros. Never did handle it in my life. . . . I never saw them explode dynamite before the 27th of De — 123 — cember,” the day of the accident. As respondent, on the day in question, was returning from the steam shovel with hisfourth load of sand to where Decampo was at work, and when he was about eight or nine feet from the fire, the dynamite that was being thawed exploded. Decampo, who was-about seven or eight feet from the fire, was killed by the' explosion, and respondent was seriously injured. Kespond-ent’s nose and one of his arms were permanently injured,the hearing of one of his ears and the sight of one of his1 eyes were entirely destroyed, and the sight of his other eye1 very much impaired. The alleged negligence of appellant, upon which respond--ent relies for a recovery, is stated in his complaint as follows: “That the defendant then and there carelessly, negligently, and wrongfully ordered the plaintiff in his work to take sand alongside said sticks of dynamite and in close proximity of said dangerous explosives, and the defendant carelessly, negligently, and wrongfully permitted the plaintiff to engage in his work and go past the premises at said place where said dangerous explosives were being handled by the defendant, without giving him any notice or warning of the dangers thereof. . . . And plaintiff never knew or had any means of knowing that said dynamite as used and handled by defendant company was hazardous, or that defendant company would handle and manage the same so as to be hazardous and dangerous. . . . That the defendant knew, or by the exercise of ordinary care should have known, of all of said dangers, and well knew that plaintiff had no knowledge and no means of knowing of the existence of said dangers.” As we have pointed out, the respondent, at the time of the accident, was a minor nineteen years of age; that he had had no experience in handling and using dynamite. The court, among other things, instructed the jury: “There is no dispute as to what was the method employed by the defendant in thawing out dynamite at the time and place where the plaintiff was injured, and there is no test-i124 mony contradicting tbe testimony that tbe plaintiff was not notified of tbe danger in working in close proximity to tbe place where said dynamite was being tbawed out, if it was dangerous, so that, if you find by a 'preponderance of the ■evidence that at the time and place where the plaintiff was injured, the method of thawing out dynamite as used by the ■defendant was dangerous, and if you further find that the plaintiff was ordered by the foreman of the work being done by the defendant at that time and place to perform the duty of carrying sand or dirt in such' close proximity to the place where such dynamite was being thawed out that his Ufe and limb were endangered thereby, then the court ■charges you that the defendant was guilty of negligence, and if you find by tbe same amount of evidence — tbat is, by a preponderance of tbe evidence — -tbat sucb negligence proximately caused tbe injuries wbicb plaintiff received, in other words, if you find by a preponderance of tbe evidence tbat but for sucb negligence tbe plaintiff would not have been injured, then tbe court charges you tbat tbe plaintiff is entitled to recover in this action, unless you find tbat be was guilty of contributory negligence, as will be hereinafter explained to you.” Appellant excepted to tbat part of tbe instruction which we have italicized and assigns tbe giving of it as error. 1 It is suggested tbat it does not necessarily follow tbat because appellant failed to warn and advise respondent of the danger of working in tbe immediate vicinity of tbe place where tbe dynamite was being tbawed, bandied, and used, appellant was guilty of negligence; that negligence in tbat regard would depend upon whether respondent knew and appreciated tbe danger without having it explained to him, and tbat tbe court should have incorporated' this question with tbe other propositions embodied in tbe instruction, and, not having done so, tbe instruction as given is erroneous. Of course if respondent knew and appreciated tbe danger, appellant could not be legally convicted of negligence because of its failure to warn and advise him of it. Tbe rule is elementary tbat tbe master is not — 125 — ’.required to instruct and warn tbe servant of tbe danger of tbe employment with wbicb tbe servant is conversant. Bailey’s Mast. Liab. to Serv’t, p. 118, and cases cited in mote. 2 We think that as an abstract proposition of law tbe in■struction, standing alone, does not lay down a correct principle of law. It does not contain all of tbe elements or propositions necessary to constitute negligence on tbe part of tbe master. If tbe court bad incorporated in tbe instruction, after tbe clause “bis life and limb were endangered thereby,” tbe following “and that plaintiff, because !of bis youth and bis inexperience in handling and using dynamite, did not know and appreciate tbe danger”— tbe instruction would, as an academic proposition, contain a correct statement of tbe law applicable to tbe facts of this ■case. 3 We do not think, however, that under tbe facts and circumstances of this case tbe giving of tbe instruction was prejudicial error. Respondent, at tbe time be was injured, was but nineteen years of age, and he bad bad no experience whatever in handling and using dynamite. And tbe •only inference permissible under tbe evidence, wbicb is not in conflict on this point, is that be did not know -or appreciate tbe danger of working in tbe immediate vicinity of tbe place where tbe dynamite was being thawed, .bandied and used. Therefore, even if tbe court bad submitted tbe question of whether respondent bad knowledge of and appreciated tbe danger, tbe jury could not have found ■against him on that question without ignoring tbe evidence and disregarding tbe instructions of tbe court. Tbe court charged tbe jury on tbe question of contributory negligence as follows: 4 “Tbe defendant alleges that tbe plaintiff was guilty of •contributory negligence, and tbe court charges you that by ■‘contributory negligence’ is meant a failure on tbe part of tbe plaintiff to exercise such care as a person of ordinary prudence would have exercised under tbe circumstances. If tbe plaintiff failed to exercise such care, — 126 — and such, failure proximately contributed to plaintiff’s injuries, then he cannot recover in this action. “The court charges you that if you find from the evidence that at the time and place of his employment by the defendant company the plaintiff had no knowledge of danger in the* use of dynamite, or its dangerous and explosive character,, and did not appreciate the dangerous nature of dynamite,, nor the danger of being in close proximity to where it was-being thawed out, then the court charges you that the plaintiff was not guilty of contributory negligence, unless you. should find that the danger was so apparent that a person of ordinary prudence, by the exercise of ordinary care, must have known and appreciated the danger incident to his employment at the place where he was injured.” The jury were given to understand by these instructions, that should they find from the evidence that respondent had' knowledge of and appreciated the danger of working in the' immediate vicinity of the place where the dynamite was-being thawed, or if they found that “the danger was so apparent that a person of ordinary prudence, by the exercise' of ordinary care, must have known and appreciated the danger,” he could not recover. The court also instructed the jury as follows: “You are not to consider any one clause of these instructions as an independent proposition, but you must consider all of the instructions together.” We do not wish to be understood as holding that in all! cases a faulty or incorrect instruction given, on one phase-of the case is cured by the giving of a correct instruction on. the same point in another part of the charge which deals with: some other phase of the case. What we do say is that, under-the facts and circumstances of this case, the giving of the-instruction complained of was not prejudicial error. Moreover, as we have suggested, the jury were in effect told that before they could return a verdict for respondent they must find from the evidence that he did not know of and appreciate the danger of working in the immediate vicinity of th® place where the dynamite was being thawed. — 127 — 5, 6 Counsel for appellant, in bis printed brief, says: “Tbe using of dynamite in blasting, at all times and under all circumstances, is more or less a dangerous occupation,” and be says: “That tbe handling of dynamite for blasting purposes was dangerous to a certain extent no one will deny. No one knows at wbat time or at wbat place, while dynamite is being bandied, that it may not explode.” And by way of argument be says: “Tbe defendant bad a right to employ a competent agent to handle this dynamite, and it bad tbe further right to employ an assistant to Decampo in performing this hazardous work; and, unless tbe defendant was negligent in handling this dangerous instrumentality, tbe mere fact that it was dangerous would not ■entitle tbe plaintiff to recover, though be knew nothing about tbe explosive qualities of dynamite, and was not •acquainted with its use.” ' It will be seen from tbe foregoing copious quotations from tbe record and tbe printed brief of counsel for appellant that tbe following facts are in effect conceded: (1) That tbe use of dynamite in blasting is inherently dangerous, and, as stated by counsel for appellant in bis brief, “no one knows at wbat time or at wbat place, while •dynamite is being bandied, that it may not explode.” Of this we think tbe court may take judicial notice. (2) That tbe thawing of tbe dynamite before tbe fire on tbe occasion referred to made of tbe immediate vicinity of tbe dynamite a very dangerous and hazardous place in which to work. (3) That respondent was not advised or warned by appellant, or by any one else, of tbe danger in working near or in tbe immediate vicinity of tbe place where tbe dynamite was being thawed, and that respondent, at tbe time be was injured, bad bad no experience whatever in handling or using dynamite, and that be did not know or appreciate tbe danger of working in close proximity of tbe fire at which tbe dynamite was being thawed. Under these circumstances we think it was tbe duty of appellant to inform respondent of tbe danger of working in tbe — 128 — vicinity of or in close proximity to the fire at which the-dynamite was being thawed, and its failure to do so was,, as a matter of law, negligence. In Bailey on Master’s Liab.. for Inj. to Servants, pp. Ill, 112, the author says: “If there are any dangers, either latent or patent, of which the master has knowledge, either- actual or presumed, which the employee, either from his youth, inexperience, want of skill, or other causes, does not, or is presumed not to, understand or comprehend, they must he made known to him by the master. . . . The-obligation is not discharged by informing the servant generally that the service in which he is engaged is dangerous; and, more-specially is this so when the servant is a person who neither by experience nor by education has, or would be likely to have, any knowledge of the perils of the business, either latent or patent. In such case the servant should be informed, not only that the-service is dangerous, but of the perils of the particular place, and the particular or peculiar dangers that attend the service, if' any. ... So the negligence on the part of the master may consist solely in his failure of duty to instruct as to the perils, known to him, or which he ought to know.” . This rule, which, we think is a wholesome one, was applied and followed by this court in the case of Pence v. Mining Co., 27 Utah, 378, 75 Pac. 934. We are therefore of the opinion that the court did not err-in giving the instruction complained of, and which we have set forth. Other errors are assigned, but we do not deem them of. sufficient importance to warrant us in discussing them. The judgment is affirmed. Costs to respondent.