Roth v. Eccles

BARTCH, C. J.

This action was brought to re-cover damages for personal injuries alleged to have been received through the negligence of the defendant. From the evidence it appears substantially that on October 30,1901, the day on which the accident which resulted in the injury complained of occurred, the defendant was erecting a large brick building at Logan, Utah, to be used for a sugar factory; that on that day, and for about two months prior thereto, the plaintiff was in his employ, and was working at the building in the capacity of “mason’s helper;” that when the accident happened the north wall of the building had been built up with brick to nearly the top of the second story — to the height of from 25 to 30- feet — and the window frames *462 Fad been set, but the apertures Fad been left open; that all tills work was done in tFe “usual and ordinary way in wFieF it is always done in tFe trade;” that it was tFe duty of tFe plaintiff and otFers to convey mortar and bricks, witF wFeelbarrows, to an elevator, on wFieF tFe same were carried to tFe second story, wFere tlie bricks were pitcFed by fellow workmen from Fand to Fand to tFe brickmasons, in tFe usual and ordinary way; and tFat at tFe time of tFe injury tFe plaintiff was wheeling mortar from tFe mortar box, situate outside tFe building, 10 to 14 feet from tFe north wall, opposite one of the windows, and while working at the mortar box a brick being pitcFed from Fand to Fand by other workmen standing on a scaffold at the second story, where the brickmasons were at work, broke into two pieces, and one of the pieces, falling and rolling on the scaffold, went through the aperture of the window and struck him on the head, inflicting the injury of which he complains. TFe evidence also shows that the plaintiff was aware of the manner in which the work both inside and outside of the building was carried on and knew that masons were at work above the aperture through which the brick fell. It is further shown that the work was conducted in the manner usual and ordinary in the trade. Under this and other evidence of similar import a verdict was returned, and judgment entered thereon in the sum of $15,000 in favor of the plaintiff.

Upon this appeal it is insisted that the court erred in refusing to instruct the jury to return a verdict of no cause- of action, as requested by the appellant. TFe contention is that there is no evidence in the record showing that the- defendant was guilty of negligence, under the circumstances, on the occasion in question. After careful examination of the pleadings and the proof, we are of the opinion that this contention is well founded.

The evidence clearly shows that at the time of the accident the work of construction was carried on in the manner usual and ordinary in the construction of *463 1 brick buildings. It is true, tbe aperture through which fell the brick that caused the injury had not been closed up, but it is shown by the proof that it is customary in the trade to leave such apertures open while the construction of the walls of the building is going on. The employe had worked there for a considerable length of time prior to the accident; knew how the work was being carried on; saw the scaffolds and the height of the wall; knew the bricks were being pitched from hand to hand by his co-employes, that brickmasons were at work over the aperture in question, and that the aperture was open; was aware of the location of the mortar box,, and its distance from the wall; and, with full knowledge of all these things, worked there voluntarily, without, so far as shown by the record, making any objection either to the manner of the performance of the work by himself or his co-employes, or to the open window, or the nearness of the mortar box to the wall. His opportunities to observe and know the dangers connected with the operations were just as good as were those of the employer. Under such circumstances the employe cannot be heard to complain that the master did not furnish him a safe place within which to perform his labor. Christienson v. R. G. W. R. Co., 27 Utah, 132, 74 Pac. 876.

The employer was not bound to furnish the employe an absolutely safe place to work. A reasonably 2 safe place, under the circumstances, was all that was required. The falling of the brick was but an incident to the employment, the danger of which the employe, who, in the absence of proof to the contrary, we must assume to be a man .of ordinary understanding, with requisite knowledge of his business, could foresee as well as could his employer. The mere fact that the employer did not close up the aperture, or do some special thing which would have prevented the accident, did not in itself render him guilty of actionable negligence. Nor does the mere showing that the doing or not doing of a thing is dangerous prove it to *464 be negligent. If the employer provides a reasonably safe place under the circumstances, furnishes reasonably safe appliances suitable to the employment, and conducts the business in accordance with the ordinary usages and customs of the trade or employment, he performs his duty to the employe in this regard. In Fritz v. Electric Light Co., 18 Utah, 493, 56 Pac. 90, this court said: “It is further contended that defendant’s failure to guard, protect, and insulate the dynamos was negligence. The machinery and. appliances used by defendant in its electric light plant before and at the time of the accident were of the kind commonly and ordinarily used in other electric light plants, and the manner and methods of running and operating them were the same. The rule has become elementary that where a master has furnished the servant with machinery and appliances reasonably safe and suitable, and such as are in general use for carrying on the same kind of business as that in which the master is engaged, and the servant is injured without any fault of the master, the master cannot be held liable because he failed to make use of some attachment or special device that might have rendered the operating of the machinery less dangerous, and the accident thereby might have been avoided.” Bailey, Mast. Liab., p. 145; Titus v. Railway, 136 Pa. 618, 20 Atl. 517, 20 Am. St. Rep. 944.

We are of the opinion that the court ought to have given the peremptory instruction requested. The case 3 must be reversed, with costs, and remanded to the lower court for further proceedings in accordance herewith. It is so ordered.

McCARTY and STRAUP, JJ., concur.