Turner v. Southern Pacific Co.
Before: Henshaw
Synopsis
NEGLIGENCE—ACTION FOR DEATH 0E EMPLOYEE—ORDER EOR DANGEROUS Work—Repair op Belt—Presumption—Burden op Proop.—In an action for the death of an employee no presumption of negligence of the employer arises from the mere fact that the employee was ordered by the foreman to do the dangerous work of repairing a broken belt by which machinery was operated, in the doing of which he was killed; but the plaintiff- has the burden of proof to show that the deceased was unskillful and inexperienced in relation to such work, and acted under orders in ignorance of the danger, or without proper instructions, or that the position of danger in which ' he was placed was not reasonably safe, or to show some other positive failure of duty on the part of the employer by which the death of the employee was occasioned.
Id.—Nonsuit.—Where the only evidence is, that the deceased was ordered by the foreman to do the dangerous work, an order granting a nonsuit was proper.
Id.—Improper Evidence—Anticipation op Depense.—It was proper to exclude evidence for the plaintiff in contradiction of the affirmative averments of the answer that the deceased met his death from the negligence of a fellow-servant.
[581]
HENSHAW, J.
The action is a statutory action by the heirs at law of Abraham Turner to recover damages for his death, caused by the alleged negligence of defendant. It was charged that Turner was an employee in defendant’s machine-shop, and that he was sent by defendant’s foreman “to an elevated position in said shop among the machinery, which was then in motion, for the purpose -of repairing a belt which had become loosened.” It is alleged that the work which he was thus directed to do was dangerous, and the danger was known to the foreman, hut was not known to Turner; that Turner believed it to be his duty to obey the foreman, and believed also that the foreman would not send him into danger, and so attempted to obey the order and do what he was told. The complaint then alleges that while Turner was doing this dangerous work, in this dangerous position, and using reasonable care, he was suddenly caught by the machinery, then in motion, and fatally injured. The answer admitted that the place to which Abraham Turner was ordered was a dangerous place, and the work he was instructed to do was dangerous work for an unskillful and inexperienced person, but denied that the character of the place and work was not known to Turner to he dangerous and denied that the place and work were dangerous for a skillful and experienced person. The defendant further made complete denial of its own negligence in the matter, and affirmatively averred that the deceased was, and had been, in its employ for several years, and during all of the time had been engaged in the work of mending belts in elevated positions amongst the machinery while it was in motion; that he was a skillful and experienced person in the performance of such labor, was in the performance of his usual vocation at the time he received his injuries, and that these injuries were occasioned by the negligence of himself and a fellow-employee, Wesley Grijalva.
It will be noted that it is admitted by the pleadings that the position to which the deceased was sent, and the work in which the deceased was engaged when he met his death, were dangerous to an unskillful and inexperienced person. Issue is joined upon the allegations of the complaint that the deceased was an unskillful and inexperienced person and went about the employment in ignorance of its dangers. It was in
[582]
More from California Supreme Court
- People v. Wende (1979)
- People v. Watson (1956)
- People v. Superior Court (Romero) (1996)
- People v. Kelly (2006)
- Auto Equity Sales, Inc. v. Superior Court (1962)
- Aguilar v. Atlantic Richfield Co. (2001)
- People v. Lewis (2021)
- In Re Estrada (1965)
- Denham v. Superior Court (1970)
- People v. Marsden (1970)