(51 Utah, 504) about 4 feet high and 4 feet 3 inches in MOOSE v. GALIGHER MACHINERY CO. diameter on the above-mentioned floor space, (No. 3140.) Appeal from District Court, Salt Lake County; Geo. F. Goodwin, Judge. Action by J. E. Moose against the Galigher Machinery Company, a corporation. Judgment on verdict for plaintiff, and defendant appeals. Reversed. Stephens & Smith and James A. Stump, all of Salt Lake City, for appellant. Willard Hanson, of Salt Lake City, for respondent. CORFMAN, J. Plaintiff brought this action to recover damages for personal injuries alleged to have been sustained by him while in the employ of the defendant. The complaint charges negligence on the part of the defendant. The answer of defendant denies all negligence on its part, and for affirmative defense alleges negligence of the plaintiff, assumption of risk, and carelessness and negligence of plaintiff's fellow servants. The facts as developed by the testimony given at the trial were, substantially, as follows: On the 22d day of May, 1916, the plaintiff was employed by defendant as a sheet metal worker in its two-story building used for manufacturing purposes in Salt Lake City. This building was equipped with an elevator running from the first to the second floor, and was operated and used by defendant's employés in carrying freight consisting of heavy articles and material from one floor to the other. On the second floor of said building a channel iron was used as a guard rail across the elevator door or opening leading into the elevator shaft. This guard rail when up was held in place by two iron brackets about 35 inches from the floor. The space inside the elevator shaft, from guide to guide on which the elevator run, was 10 feet 4 inches. Immediately in front of the elevator shaft on the second floor and adjoining the same a floor space about 14 feet square was smoothly surfaced with cement or concrete, and it was customary for workmen to there assemble the material used and do their work in the construction of different articles manufactured out of sheet metal. On the said 22d day of May, at about 4:30 o'clock p. m., the plaintiff was engaged in making a galvanized iron cylindrical tank and after doing a portion of his work he We quote from the abstract: * * * "At the time of my injury I had worked for. the company about 4 years and 6 months, and Was all the time in the same class of work. Am acquainted paid $4.50 per eight hours. with the Galigher Machinery Company's place of business. It is in the same place as it was when I began working there. The majority of the time I worked on the second floor of the building, probably a day or two or once a month I would have some sheets or something to cut downstairs, but the greater part of the time I worked on the second story of the buildI was working in iron tanks on ing. * * The tank I was the day of the injury. working in was feet, 3 or 4 inches in diameThere was more ter, and 4 feet high. space over on the cement floor. It was clean. This cemented place was a good place to do I had about 14 feet square to work in. the work. I had been doing this kind of work when anything of the kind was needed all the It was very customary time I worked there. to work on this cement floor, because we had a smooth surface to work on and it was close to the rolls and to the punch. It was also handy to take the tank down when completed. You didn't need to roll it the full length of the shop and move three or four tons of stuff to get there. The light was always good there when I had Others always no good light in other places. worked there when they could catch it, when there wasn't some one already there. The one who got there first was the lucky man. I was working immediately in front of the elevator shaft. No one had ever made any objection to my working there. It was necessary, after tipping the tank over, to go inside to do my work. I generally kneel on my knees, spread my legs a little, and roll the tank with my knees either way, to make it conform with where you are pounding on the floor. is the way I was doing on the day of the accident. A channel iron 2x3, I judge, and 15 or 16 feet long, is at the elevator shaft to keep This iron went the tank from going down. That It across the shaft, as shown in Exhibit B. Mr. Davis had been foreman about 1 year, I think, and the former foreman before him was Sid King. Mr. Galigher is general 1 Roth v. Eccles, 28 Utah, 456, 79 Pac. 918; Fritz manager of the company, I believe. I heard Mr. v. Electric Light Co., 18 Utah, 493, 56 Pac. 90. Galigher say that it must be kept up at all For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes times. I heard him give these instructions. I heard Mr. Davis say the same thing to a number of employés. By being kept up, I understood that the channel iron was to be kept in the brackets. During the 42 years prior to the day of the accident, I judge I had probably seen the iron out once or twice, and during that time I had heard Mr. Davis say that it must be kept up. Ordinarily I saw it kept up. On cross-examination plaintiff testified: "Q. Then when you got into the tank, when it was down, the bar was up, was it? A. I don't know; I didn't look. Q. You didn't look? A. Not when I went into the can; when it was down I had no occasion to. I didn't notice whether the bar was up or not after I put the tank down. I didn't get out of the tank after I laid it down and before it fell. I worked on my hands and knees, with my face towards the bottom of the tank, so that I was in a stooped position." There was no material conflict in the testimony, except as to the presence of the employé Larson near the elevator immediately prior to the accident. Mr. Larson testified that he used the elevator at about 1:30 o'clock, that he put up the guard rail when through using the elevator at about 2:00 p. m. and during the remainder of the afternoon was engaged in duties elsewhere, and did not go near the elevator. Other witnesses corroborated Larson's statement. I Trial was to a jury, resulting in a verdict for the plaintiff, and judgment was entered thereon in the sum of $8,500. Defendant appeals. I judge it was a little after 4 o'clock in the afternoon of the day of the accident that I put the tank on the cement floor. * * * Up to the time of the accident there were probably three or four others working on that floor. I had a helper whose name It further appears from the testimony that was Champion, I think. * Mr. Rasmussen, I believe, and the plaintiff was at the time of the accident his helper were working on that floor that 46 years of age, able bodied, in good health, afternoon. During the afternoon I saw some and earning as a mechanic $4.50 per day. As one using the elevator, I believe his name was Larson. Believe he was loading pipe of some a result of the accident, he sustained inkind on the elevator. * In using the juries to his arm, head, and spine, and sufelevator persons would load it and take it down fered a great deal of pain. Since the acciand unload it and come back and get another load. Goods would be loaded on the ele- dent and up to the time of trial in January, vator and taken down. It is simply an order 1917, plaintiff was unable to do any hard being filled. I saw Mr. Larson taking pipe of manual labor. As to whether his injuries some kind down. As he would carry this he are permanent or only temporary the testiwould come right up where I worked. That is the only way he could go to the elevator. He mony is not clear. would load the elevator, take it down, and come back as required. I saw him doing that a number of times that afternoon. It was probably 4:30 or 4:40 that afternoon when the tank was turned down and I went into it. Prior to that the tank had been standing upright. It was probably 4:20 or 4:25 when I got into the tank while it was standing upright. I wasn't in it very long then, as it didn't take very long to do what I had to do. When I got into the tank standing upright I climbed over the north side of it. I noticed the elevator at the time. I couldn't help but notice it as I was looking right straight to it when I jumped into the tank. The bar was then up in its place. don't know how the elevator was; I didn't see it, I guess it was clear down on the bottom floor. The elevator had to be below or I could have seen it. The elevator could be about a foot above the floor, but if it had been above at Errors are assigned in the refusal of the that time I could have seen it. After doing my court to grant defendant's motion for a nonwork in the tank while standing upright, I came out again and saw my helper and sent him for suit at the close of plaintiff's testimony in two iron horses to stand the tank on so I could chief; the court's refusal to give and in the rivet it. He had to go down the stairway for giving of certain instructions, among them the horses. He left me there and started for the failure to direct the jury to return a verthe stairway. At about the time I sent my helper for the horses I saw the man loading the ele- dict for the defendant; the denial of devator. He was going by me towards the ele- fendant's motion for a new trial on the vator. Q. With what? A. I don't know. I ground of the insufficiency of the evidence don't think he had anything at the time; he to support the verdict, and that the judgment might have had a piece of pipe; I didn't pay much attention. He was the same man who entered thereon was against law; and that had been using the elevator that afternoon, the verdict and the judgment entered thereand he was going towards the elevator right on was excessive. past my tank. I then went in the tank; the To our minds the one controlling question tank having been turned over. The open end of the tank was towards the northeast. I went presented by this appeal is whether or not, into it and got on my knees and was pounding under the conditions and circumstances atdown the rough edges. As you do that work tending the accident complained of, plaintiff you have to move the tank to conform with where you are pounding on the floor. The tank himself was not guilty of gross carelessness rolls with you on the inside. About all you and negligence that was the proximate cause can see is a shadow or anything like that. The and directly contributed to the injuries he only way of seeing out would be through the received. It conclusively appears from the end. I was facing the bottom of the tank watching my work, and the tank was rolling record that the elevator was properly conwith me in it. went into the elevator shaft structed and equipped with appliances, and and the tank struck the top of the cage after on the day of the accident was in good conit pitched down. The tank struck nothing in dition and repair; that it was used exclugoing into the shaft, and it didn't go over anything. The tank couldn't go over the bar if sively for the purpose of carrying freight one end were down on the cement floor. The from one floor to another in the building tank was not stopped, and there wasn't even a where the plaintiff was employed to do his jar in going into the shaft. I was in the bot-work. It also appears that the plaintiff was tom of the tank. The tank struck bottom method employed in its operation. That the [ployé of the defendant was using the elevadefendant exercised ordinary care and pru-tor immediately before he entered into the dence in furnishing the plaintiff a reasonably safe place in which to perform his work, there can be no doubt, and it is not contended otherwise. tank to finish his work; that he did not take notice whether the bar was up or down when he entered the tank after turning it on its side; that he immediately proceeded to roll the tank, in doing his work, down the open shaft of the elevator, and thus sustained the injuries of which he complains. We are not prepared to say that, ordinarily, in cases of an accident, the defendant would not be chargeable with the failure of ably disclosed, to keep the guard rail of its elevator in place, but we are very firm in our opinion that under all the circumstances and conditions attending plaintiff's accident, he must, as a matter of law, be held guilty of his own gross carelessness, more especially in failing to look and ascertain the condition of the elevator shaft before proceeding in the extremely hazardous, not to say ridiculous, manner in which he did do his work. The plaintiff knew from experience that there was the possibility of some employé, or other person, leaving the guard rail down and the open elevator shaft exposed. He states that he entered the tank without taking any notice of the condition of the elevator shaft, or whether or not the guard rail was in place. He then proceeded to roll the tank with himself in it toward and into the open shaft when he could just as well and conveniently have rolled it in three other directions with perfect safety. Roth v. Eccles, 28 Utah, 456, 79 Pac. 918; Fritz v. Electric Light Co., 18 Utah, 493, 56 Pac. 90; Reed v. Stockmeyer, 74 Fed. 186-189, 20 C. C. A. 381; Oleksy v. Midland Linseed Co., 168 Fed. 898, 94 C. C. A. 308; Labatt, Mast. & Serv. (2d Ed.) § 1249. The contention is made, however, by respondent, that the place where the plaintiff was called upon to do his work was not maintained in a safe condition, and was rendered unsafe by reason of some person, presumably an employé of the defendant, neglecting to put up the guard rail before low-its employé, whose identity is only presumering the elevator, and for this neglect the defendant was chargeable. In support of this contention, plaintiff has cited in his brief the following cases, which he contends are in point, and apply to the case at bar, to wit: Glennon v. Star Co., 130 App. Div. 491, 114 N. Y. Supp. 1044; National Syrup Co. v. Carlson, 155 Ill. 210, 40 N. E. 492; Johnson v. Bruier, 61 Pa. 58, 100 Am. Dec. 613; Maguire v. Little (R. I.) 13 Atl. 108; Barber Asphalt Paving Co. v. Austin, 186 Fed. 443, 108 C. C. A. 365; Hoffman v. Clough, 124 Pa. 505, 17 Atl. 19; Security Cement & Lime Co. v. Bowers, 124 Md. 11, 91 Atl. 834; Raferty v. Central Park, etc., R. R. Co., 14 Misc. Rep. 560, 35 N. Y. Supp. 1067; Eastland v. Clarke, 165 N. Y. 420, 59 N. E. 202, 70 L. R. A. 751; Day v. Emery, etc., Co., 114 Mo. App. 479, 89 S. W. 903; Moore v. Pac. Coast Steel Co., 171 Cal. 489, 153 Pac. 912; Hennessey v. Wabash Mills Co., 235 Pa. 31, 83 Atl. 706; Hillebrand v. Standard Biscuit Co., 139 Cal. 233, 73 Pac. 163. We have examined the cases cited by counsel, and they announce and adhere to the well-established doctrine that it is not only the duty of the master to provide a reasonably safe place for his servant to perform his work in, but he must use due diligence, and care in keeping the place safe, so that the servant will not be unnecessarily exposed to danger. In the case at bar we think that the conditions and circumstances under which the accident happened and the plaintiff here sustained his injuries are so materially different that the cases cited by plaintiff are not in point and do not apply. The testimony shows that the plaintiff was thoroughly familiar with the building in which he worked, that practically all of his work was performed on the second floor; that he knew the manner in which the elevator was operated and the purposes for which it was being used by the employés of the defendant. During the long period of his employment prior to the accident, he states that he repeatedly heard the foreman and general manager of the plaintiff instruct the employés that the guard rail of the elevator must be kept up at all times, in the brackets which held it in place; that ordinarily it was kept up, but on one or two occasions he had seen the guard rail out of the brackets. The plaintiff further testified that it was apparent to him that some em We do not deem it necessary to discuss nor pass upon in detail all of the questions raised by appellant's brief and argument, for they all go to the question of the right of the plaintiff to recover of the defendant for the injuries plaintiff sustained under the conditions and circumstances attending the accident of which he complains. We are of the opinion that the trial court erred in refusing, at the conclusion of all the testimony in this case, to direct the jury to return a verdict in defendant's favor as requested. It is therefore ordered that the judgment of the district court be reversed. Defendant to recover costs. FRICK, C. J., and MCCARTY and THURMAN, JJ., concur. GIDEON, J. (dissenting). In the majority opinion it is conceded that it was the duty of the employer to furnish the plaintiff as a workman with a reasonably safe place in which to work. From the statement of facts it appears that plaintiff, and the other workmen, had been working at the place in ques 61-REMOVAL-JURY TRIAL. §§ 2851, 2852), providing for summary trial in TION. A proceeding for removal of a county officer need not be brought in the name of the Laws, §§ 2851, 2852), giving procedure for restate, under St. 1908-09, c. 200, §§ 21, 22 (Rev. moval of officers. tion for more than 41⁄2 years in exactly the 13. CONSTITUTIONAL LAW 313 OFFICERS same kind of work that the plaintiff was then doing. The statement also shows that it was necessary to keep the bar across the opening in the elevator in order to make that particular place a safe place in which to work. That plaintiff did not remove the bar is self-evident. That it was in place when he began to do the work at which he was engaged at the time of the accident is not disputed. The last time he noticed it before he went into the tank the rail was in place. While he was doing the work in the tank some of the other workmen passed up and down with the elevator, and it is reasonable to presume that the other workmen, or some one of them, left the rail down. Now, the "gross negligence" mentioned, and which is charged to the plaintiff, is that he did not come out of the tank and examine the opening into the shaft after his fellow workmen had evidently gone down to the floor below. That is, the plaintiff is charged with gross negligence, forsooth, because he did not as sume that his fellow workmen would be guilty of negligence by leaving the bar down when descending in the elevator to the floor below. In my judgment the statement of facts does not warrant any such conclusion, but, on the contrary, shows conclusively, as the jury must have found, that some one of the other workmen besides the plaintiff, without the plaintiff's knowledge and after he had entered the tank for the purpose of doing the work in question, negligently removed the bar and left it down. No claim is made that the workman using the elevator was a fellow servant of the plaintiff. Plaintiff did not, therefore, assume the risk due to the negligence of such fellow workman, and cannot be held responsible for any injury resulting from such negligence. The employer should be held to answer for such negligence. The judgment of the district court, in my opinion, should be affirmed. I therefore dis sent. (41 Nev. 330) 5. CONSTITUTIONAL LAW 43(1)-CONSTITUTIONALITY OF STATUTE-WHO MAY CHALLENGE. Where the requirement under St. 1908-09, c. 200, $$ 21, 22 (Rev. Laws, §§ 2851, 2852), providing for removal of officers, that officer removed shall pay complainant $500, is waived, the constitutionality of such requirement cannot be considered. 6. STATUTES 125(1)-TITLE AND SUBJECTREMOVAL OF OFFICERS. only the one subject of removal of officers, alThe title to St. 1908-09, c. 200, relates to though it provides several independent methods for removing them. Original proceeding in certiorari by Sam Gay to inquire into the jurisdiction of the Dis. trict Court of the Tenth Judicial District of the State of Nevada in and for the County of Clark and Charles Lee Horsey, judge of said court. Writ of certiorari dismissed. W. R. Thomas, of Las Vegas, A. W. Ham, of Los Angeles, Cal., and Richard Busteed, of Las Vegas (Chas. E. Barrett, of Las Vegas, of counsel), for petitioner. Geo. B. Thatcher, Atty. Gen., E. T. Patrick, Deputy Atty. Gen., and A. S. Henderson, Dist. Atty., and F. A. Stevens, Asst. Dist. Atty., both of Las Vegas, for respondents. McNamara & Van Fleet, of Elko, amici curiæ. COLEMAN, J. This is an original proceeding in certiorari to inquire into the jurisdiction of the Tenth judicial district court of the state of Nevada to enter a judgment removing the petitioner, Sam Gay, as sheriff of Clark county, Nev., from office. A complaint was filed in the district court of said county, wherein it was alleged that GAY v. DISTRICT COURT OF TENTH JU-the defendant, Sam Gay, as sheriff, was guilDICIAL DISTRICT IN AND FOR CLARK COUNTY et al. (No. 2317.) (Supreme Court of Nevada. March 4, 1918.) 1. COUNTIES ~67-OFFICERS—REMOVAL-JURISDICTION OF DISTRICT COURT. Whether or not Const. art. 6, § 6, gives the district court jurisdiction of proceedings for removal of county officers, article 7, § 4, gives the Legislature plenary power to provide procedure therefor, and therefore St. 1908-09, c. 200, §§ 21, 22 (Rev. Laws, §§ 2851, 2852), giving such jurisdiction, is constitutional. 2. CONSTITUTIONAL LAW 61-DELEGATION OF POWER TO JUDICIARY. Const. art. 3, § 1, providing that none of the three departments of government shall exercise functions belonging to the others except where expressly directed, makes it plain that the district court could be delegated powers other than those expressly mentioned by article 6, § 6. ty of nonfeasance in office, in that he neglected and refused to arrest one Joe Keate, his deputy, while the latter was making an assault with a pistol upon W. H. Harkins, a justice of the peace, in the presence of the defendant. Upon the filing of the complaint citation was issued and served upon the defendant. Defendant did not demur to the complaint, or in any way question the jurisdiction of the court, but filed an answer denying certain of the allegations of the complaint. The matter was heard upon the issue thus raised, and the court found the allegations of the complaint to be true and entered judgment removing the defendant from office. The Constitution of Nevada, as do the ed to appear before him on a certain day, not more than ten nor less than five days from the time when said complaint shall be presented, and on that day, or some subsequent day not more than twenty days from that on which said complaint is presented, shall proceed to hear, in a summary manner, the complaint and evidence offered by the party complained of, and if, on such hearing it shall appear that the charge or charges of said complaint are sustained, the court shall enter a decree that said parfice, and shall enter a judgment for five hundred dollars in favor of the complainant and such costs as are allowed in civil cases." Constitutions of the various states, divides the powers of the state into three branches, and provides that the judicial power of the state shall be vested in a Supreme Court, district courts, and in justices of the peace, and authorizes the Legislature to establish municipal courts. Section 6, art. 6, of the Constitution, provides that the district courts shall have jurisdiction in certain cases, but does not say that they shall have jurisdic-ty complained of shall be deprived of his oftion in proceedings for the removal of any public officer; hence counsel for petitioner contend that the district court had no juris- The constitutional convention, in adopting diction to hear and determine the charges section 4 of article 7 of the Constitution, filed with said court and to make the order realized, no doubt, that to confer upon legisfor the removal of the petitioner from office. lative bodies the duty of impeaching, trying, [1] Without determining as to the scope and removing district, county, township, and and effect of section 6, art. 6, of the Consti- municipal officers would be to place an untution, but conceding for the sake of this due burden upon the Legislature, and furmatter that the district court acquired no thermore might, in some instances, unreajurisdiction under the section of the Consti- sonably delay the removal of vicious offitution mentioned, we are nevertheless of the cials, and in many cases would afford no opinion that the court had jurisdiction to relief whatever, in view of the fact that a hear and determine the matter presented in majority of the officers contemplated by secthe complaint filed in the district court tion 4, art. 7, of the Constitution, are electcharging the petitioner with nonfeasance ined for only two years, and since the Legislaoffice. From time immemorial society has ture convenes during the month in which found it necessary to make some provision the public officers referred to take office, and for the removal of venal, corrupt, faithless, adjourns at the end of 60 days, not to reand negligent public officers. The impor- convene until after the term of all county tance of this was realized when the Consti- officers shall have expired, and therefore tution of the United States was drafted, and conferred plenary power upon the Legislathis policy has been carried into the Consti- ture to provide a special and summary protution of every state in the Union. The ceeding for the removal of certain officers. impeachment of all of the state and judicial State v. Borstad, 27 N. D. 533, 147 N. W. officers of Nevada, except justices of the 380, Ann. Cas. 1916B, 1014; State v. District peace, is provided for in article 7 of the Con- Court, 53 Mont. 350, 165 Pac. 294. stitution; and while no procedure is prescribed in the Constitution for the removal of other officials, section 4 of article 7 reads: "Provision shall be made by law for the removal from office of any civil officer other than those in this article previously specified, for malfeasance, or nonfeasance in the performance of his duty." It was pursuant to this provision of the Constitution that the Legislature passed "An act providing for the removal from office of public officers for malfeasance or nonfeasance in office, regulating the mode of procedure, and other matters properly connected therewith." Stats. 1909, p. 293; R. L. §§ 2851, 2852. Sections 21 and 22 of the act read: "Sec. 21. If any person now holding or who shall hereafter hold any office in this state, who shall refuse or neglect to perform any official act in the manner and form as now prescribed by law, or who shall be guilty of any malpractice or malfeasance in office may also be removed therefrom as hereinafter prescribed. "Sec. 22. Whenever any complaint in writing, duly verified by the oath of any complainant, shall be presented to the district court, alleging that any officer within the jurisdiction of said court has been guilty of charging and collecting any illegal fees for services rendered or to be rendered in his office, or has refused or neglected to perform the official duties pertaining to his office as prescribed by law, or has been guilty of any malpractice or malfeasance in office, it shall be the duty of the court to cite the party charg Numerous objections are made to the act under which the proceedings in the district court were had, but, as we view the authority conferred by the section of the Constitution mentioned, they may be all brushed aside, save and except such objections only as go to the title of the act. We say this for the reason that the power of the Legislature is plenary so far as providing for the We do method of procedure is concerned. not think there is any authority which quesThe Supreme Court of California, in Re Marks, 45 Cal. 199, had under consideration a statute substantially the same as ours, and one which was enacted pursuant to a constitutional provision to all intents and purposes the same as ours. court in that case said: tions this view. The "The act of 1853 does provide how, in what manner, upon what procedure, in what court, officers, not of the first class, shall be tried for that misdemeanor in office known at common law, and recognized in this statute as neglect of official duty. The power of the Legislature to enact such a statute (under the latter clause of section 18) is plain-as obvious as is the power of the Assembly to prefer and that of the Senate to try articles of impeachment under the first clause of the same section. The power to remove certain officers for misdemeanor in office is exercised only by the Assembly and Senate under the name of impeachment-the like power to remove all other officers under like circumstances and for like causes is to be exer |