Lassen v. Southern Pacific Co.

SHAW, J.

The defendant’s motion for a nonsuit was granted and judgment was thereupon given in its favor. The plaintiff appeals.

The complaint alleges that the plaintiff was employed by the defendant in the capacity of machinist’s helper in the defendant’s roundhouse in the city of Los Angeles; that on August 9, 1912, while so employed, the plaintiff was directed by the machinist, under whose supervision he worked, to remove a certain “binder,” a large heavy piece of steel used in repairing a locomotive, from one part of the roundhouse to and alongside of the pit in which the machinist was working and over which a locomotive was standing; that he proceeded to do so by dragging the binder, and upon arriving at the said pit the plaintiff dropped the end of the binder held by him to the floor, where it struck the end of a steel chisel causing the chisel to fly upward and strike the plaintiff in his left eye, totally destroying his sight therein; that said chisel had been by the defendant or some of its officers or agents negligently and carelessly dropped, laid, or left at the place from whence it struck the plaintiff.

There was a trial by jury and at the close of the plaintiff’s testimony the defendant filed a motion for nonsuit, which was granted by the court, judgment thereafter being entered that plaintiff recover nothing in his action and that defendant recover from the plaintiff its costs.

We think the court below erred in granting the motion for nonsuit. At the time of the injury complained of the Employers’ Liability Act of 1911 was in force. (Stats. 1911, p. 796.) That statute abolished the previously available defenses of an employer, in an action by an employee for damages from personal injuries, that the plaintiff had assumed the risk of the hazard from which he was injured, and that

[73]

the injury was caused by the negligence of a fellow-servant. Consequently, the case must be decided upon the principle that the employer was responsible for the negligence of his employees when such negligence caused injury to another of his employees, and for all injuries caused by dangers arising from the work itself or from the place where it is carried on. That statute also provided that contributory negligence of the employee should not bar his recovery if it was slight and that of the employer or fellow-servant was gross, in comparison, and that in such cases the jury may diminish the damages according to the proportion of negligence chargeable to the employee.