Siciliano v. Denver and Rio Grande Western R. Co.

364 P.2d 413, 12 Utah 2d 183, 1961 Utah LEXIS 213

• Court: Utah Supreme Court
• Decided: August 24, 1961
• Docket: 9378
• Status: Published

Opinions

HENRIOD, Justice.

Appeal from a verdict in favor of plaintiff for an on the job eye injury in a Federal Employers’ Liability Act¹ case. Reversed. Costs to defendant.

The injury occurred in September, 1952,. at a time when plaintiff was about 53 years-of age and had been working as a machinist for defendant for 30 years. Trial of the case came 8 years later in 1960.

On the day of the injury plaintiff was-working on a steam engine, with another employee, Wells, not his boss. Wells asked plaintiff to get a piece of wire hanging on a peg nearby. Plaintiff, only witness to-what ensued, testified that he “reached up-for the wire and all at once it sprung and came like lightning and I dropped the wire”" and “when I dropped the wire it sprung that much more.” He said the end of the wire struck him in the eye. That is the sum 'total of the evidence upon which plaintiff bases his claim that defendant was negligent. Defendant presented evidence that ■coils of wire with loose ends customarily were hung on pegs by industrial plants.

Besides claiming that plaintiff bailed to sustain his burden of proving defendant negligent in at least some degree, — as he must,- — defendant urges that the court erred in giving an objected to instruction that plaintiff did not assume .any risk in his employment.

Under the facts of this case we feel constrained to and do hold that as a matter •of law there was no proof offered by plaintiff, by controverted evidence or otherwise, from which reasonable persons could find that defendant was guilty of negligence in any degree.

It has been established that the employer must respond in damages under the Act if it was negligent in any degree.² However, as stated by Mr. Justice Douglas in Ellis v. Union Pac. R. Co., ³ “The Act does not make the employer the insurer of the safety of his employees while they are on duty. The basis of his liability is his negligence, not the fact that injuries occur.”⁴ We can see nothing in the record here that establishes such negligence, and we are convinced that to allow recovery here would be to transcend the interdiction of the Ellis case that “the Act does not make the employer the insurer of the safety of his employees.”

As to the contention that it was prejudicial error to instruct the jury as to assumption of risk, we agree. No issue was raised by defendant’s pleading on that score, and there was no evidence that remotely could have suggested that assuming the risk would have prevented recovery here. Nor would have been proper an instruction on assumption of risk had this been a case divorced from the F.E.L.A. (which spécifically eliminates such defense), since the evidence showed conclusively that Siciliano had no knowledge of any hazard, such knowledge being a necessary factor before assumption of risk can be urged as a defense.⁵

Mr. Chief Justice Wolfe expressed our disapproval of such an instruction where the issue was not raised, in Bruner v. McCarthy,⁶ but said under the circumstances, where negligence had been established as a matter of law, it could hardly prejudice anyone. In another F.E.L.A. case, Moore v. Denver & R. G. W. R. Co.,⁷ Mr. Justice McDonough lent emphasis to such disapproval by saying that “In the present case, as in the Bruner case, no issue of assumption of risk was raised by the pleadings or the evidence and no good purpose could have been served by the giving of such an instruction. In some cases, it is conceivable that (the instruction) might be proper and necessary to dispel improper inferences from pleadings and evidence * * * It is unnecessary for us to determine whether under the facts of this case, the giving of the instructions constituted reversible error since the case is reversed on other grounds. The instructions were improper and should not be given in the new trial granted under this opinion.” The Nebraska case of Ellis v. Union Pac. R. Co.⁸ emphasizes such disapproval in even stronger language.

The coup that seems to have led to the disapproval of the instruction in F.E.L.A. cases, was executed by Mr. Justice Frankfurter in his concurrence in Tiller v. Atlantic Coast Line R. Co.,⁹ when he said:

“ ‘Assumption of risk’ as a defense where there is negligence has been written out of the act. But ‘assumption of risk’, in the sense that the employer is not liable for those risks which it could not avoid in the observance of its duty of care, has not been written out of the law. Because of its ambiguity the phrase ‘assumption of risk’ is a hazardous legal tool. As a means of instructing a jury, it is bound to create confusion. It should therefore be discarded.”

This language was referred to and applied in Texas & Pac. Ry. Co. v. Buckles.¹⁰

In order to serve as a guide for instructions on assumption of risk in F.E.L.A. cases, we state that in the usual case it is prejudicial error to instruct that under the act the employee does not assume the risks of his employment occasioned by the employer’s negligence, unless, as Mr. Justice McDonough pointed out in the Moore case, such issue was raised by the pleadings and evidence, — and we might add unless raised by the pleadings or evidence. There may be a case where the issue was not pleaded but where the evidence so emphasizes the fact that the employee recklessly and foolishly took on a known and dangerous hazard as to “create improper inferences” that ■should be “dispelled” by a cautionary instruction, as reflected in the language of Mr. Justice McDonough.

WADE, C. J., and McDONOUGH and 'CALLISTER, JJT., concur.

1 . 45 U.S.C.A. § 51 et seq.

2 . 45 U.S.C.A. § 51, cases shown in note 871.

3 . 1947, 329 U.S. 649, 67 S.Ct. 598, 600, 91 L.Ed. 572.

4 . We quoted the language with approval in Lasagna v. McCarthy, 111 Utah 269, 177 P.2d 734, and the language also was approved in 1955 in the federal courts in Atlantic Coast Line R. Co. v. Anderson, 5 Cir., 221 F.2d 548; see also in Marcades v. New Orleans Terminal Co., D.C., 111 F.Supp. 650; Inman v. Baltimore & O. R. Co., 108 Ohio App. 124, 161 N.E.2d 60.

5 . Clay v. Dunford, 121 Utah 177, 239 P. 2d 1075.

6 . 105 Utah 399, 142 P.2d 649.

7 . 4 Utah 2d 255, 292 P.2d 849, 852.

8 . 148 Neb. 515, 27 N.W.2d 921.

9 . 318 U.S. 54, 63 S.Ct. 444, 453, 87 U.Ed. 610.

10 . 5 Cir., 232 F.2d 257.