Thompson v. Cal. Construction Co.
Before: Angellotti, Van Dyke
Synopsis
Master and Servant—Safe Place for Work—Duty of Master-Ordinary Care.—The duty of an employer to furnish to an employee a reasonably safe place in which to work is not absolute. His duty is fulfilled when he exercises ordinary care for that purpose.
Id.—Erroneous Instruction — New Trial — Counter Instruction — Discretion.—It cannot be said that the superior court abused its discretion in granting a new trial for an erroneous instruction as to the duty of the employer, although a counter instruction was given which may have cured the error. Much is committed to the discretion of the trial court in granting a new trial on such ground.
Id.—Limited Ground for New Trial—Review upon Appeal—Error in Defusing Nonsuit.—The -action of the trial court in limiting the ground for granting a new trial to the erroneous instruction does not restrict this court in examining the record to ascertain any other ground for granting a new trial, except the sufficiency of the evidence where it is conflicting. Where one of the grounds for a new trial was the denial of a motion for a nonsuit, urged because no actionable negligence of the defendant was shown, and which it appears should have been granted, the order granting a new trial will be affirmed for error in refusing the nonsuit.
Id.—Injury in Quarry — Blasting from Cliff — Sliding of Bock — Changing Conditions—Negligence not Shown—Burden of Proof. —Where the plaintiff was employed in a quarry, in which blasting was done from a high cliff, and in which the conditions of danger constantly changed as the work progressed, and was injured by the sliding of a rock upon him, and it is not shown that defendant or any one representing a master had any better means of knowledge of the danger than plaintiff, the mere fact that the rock slipped and caused the injury is not prima facie evidence of defendant’s negligence. The burden is upon the plaintiff to show that the injury was due to defendant’s negligence, and for want of proof thereof the nonsuit should have been granted.
Id.—Liability of Master — Bulbs Applicable. — The rule that the master is not liable for dangers existing in the place where the servant is assigned to work, unless the master knows of the dangers or defects, or might have known thereof if he had used ordinary care or skill to ascertain them, applies with greater force where the conditions surrounding the place of work are constantly changing, owing to the progress of the work; and the rule is modified where the servant is under the same obligation as the master to look for dangers in the place of the work, and has equal facilities for ascertaining them, and under these conditions continues the work, in which case the master is not liable for any injury caused by the dangers then existing, unless in some manner he urges or coerces the servant to continue the work, after he himself is aware, or should have been aware, of the danger.
Opinion — Van Dyke
VAN DYKE, J.
—This was an action by an employee against the employer for damages on account of personal injuries received in a rock quarry in the possession and control of the defendant at the time of the injury. The verdict went for the plaintiff, and the defendant moved for a new trial upon various grounds assigned in his notice of motion therefor. The court below granted a new trial, and in doing so entered the following order: “Defendant’s motion for a new trial is hereby granted upon the following specified ground, and upon no other, to wit: The court erred in instructing the jury as follows: ‘It is the duty of the employer to furnish an employee with a reasonably safe place in which to do any work the employer shall require of the employee, and to keep that place reasonably safe, and the employee has the right to assume that the employer has performed that duty, and the employee is not required to use any degree of care or diligence to discover danger to which he shall be exposed by reason of the failure of his employer to do his duty, and the employee shall be held to have assumed the risk only when he knew, and will be held to have known only when the danger was so obvious that he must have known or simply neglected to open his eyes and see, or when he was put upon inquiry by some discovery or sug
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gestión of danger which it was gross carelessness for him to neglect. ’ ” From this order plaintiff appeals.
The latter clause of the instruction is taken, word for word, from the decision of this court in
Silveira
v.
Iversen,
128 Cal. 192 [60 Pac. 687]. We express no opinion upon the question whether or not this part of the instruction was correct' as applied to this particular case. The instruction in effect told the jury that the employer must furnish an employee with a reasonably safe place to work, without regard to the nature of the employment, and that “the employee is not required to use any degree of care or diligence to discover danger to which he shall be exposed by reason of the failure of his employer to do his duty.” The code declares the law on this subject as follows: “The employer is not bound to indemnify his employee for losses suffered by the latter in consequence of the ordinary risks of the business in which he is employed, nor in consequence of the negligence of another person employed in the same general business, unless he has neglected to use ordinary care in the selection of the culpable employee.” (Civ. Code, sec. 1970.) “An employer must in all cases indemnify his employee for losses caused by the former’s want of ordinary care.” (Civ. Code, sec. 1971.) And, as correctly stated in
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