28 478 f30 368 Dunn v. Railroad. Lake City, 23 Utah 521, 65 Pac. 491. And this court. held, in an opinion written by Mr. Chief Justice Bartch, that an agreement made between Salt Lake City and one Haddock, which provided that Haddock was to receive a certain compensation, which was in excess of the fees fixed by law, for serving summons and other writs in certain cases in which the municipality was the party plaintiff, was against public policy and void. Applying the principle of law announced in that case, which is in harmony with the law as declared by the text-writers and the adjudicated cases, to the facts in this case, we are of the opinion, and so hold, that the trial court erred in finding the issues in favor of the respondent. The case is therefore reversed, with directions to the lower court to dismiss the action. And costs of this appeal are taxed against respondent. BARTCH, C. J., and STRAUP, J., concur. EPHRAIM DUNN, Respondent, v. THE OREGON SHORT LINE RAILROAD COMPANY, a Corporation, Appellant. No. 1582. (80 Pac. 311.) MASTER AND SERVANT: Negligence: Assumption of A section gang, to facilitate the loading of ties on a car, which they were about to do, made a temporary platform at the end of the car, by placing ties lengthwise the track, between the rails, and extending two planks from the ground to such ties. After one of the crew had been loading the ties for two hours, he was injured while pushing a tie into the car. either by the slipping of one of the planks when he was on it, or by his slipping after stepping onto the ties between the rails, which were wet and muddy. Held, that plaintiff had assumed the risk.1 STRAUP, J., dissenting. 1 Higgins v. Railroad Co., 72 Pac. 690, 26 Utah, 165; Christienson v. Railroad Co., 27 Utah, 132, 74 Pac. 876. Dunn v. Railroad. (Decided March 15, 1905.) Appeal from the First District Court, Box Elder County.-Hon. C. H. Hart, Judge. Action to recover damages for personal injuries. From a judgment in favor of the plaintiff the defendant appealed. AFFIRMED. P. L. Williams, Esq., and Geo. H. Smith, Esq., for appellant. Lindsay R. Rogers, Esq., and Jas. S. Perry, Esq., for respondent. STATEMENT OF FACTS. In this suit the plaintiff seeks to recover damages for personal injuries which he claims he received through the negligence of the defendant. The answer denies the negligence charged, and alleges contributory negligence and assumed risk on the part of the plaintiff. As a witness in his own behalf, the plaintiff, among other things, testified, in substance, that on the morning of April 23, 1902, when he received the injury of which he complains, he was in the employ of the defendant as a section hand, and had been so employed for some time previous; that on the morning in question, after performing some other duties, he joined the rest of the section gang at Willard Station, where the men, under the direction of the foreman, were engaged in loading ties from the ground into a coal car, by putting them in at the end of the car, the end gate having been removed; that at the end of the car the men had constructed a platform (a temporary arrangement devised by them for the purpose of making the loading more convenient and easier, although the ties could have been loaded Dunn v. Railroad. without it); that the platform consisted of six or seven ties laid lengthwise between the rails of the track, in front of the end of the car, and two planks, one end of each resting on the ties, without being nailed, and the other on the ground near the pile of ties (the planks, which were 12 feet long, 3 inches thick, and 12 inches wide, forming a runway, of an easy grade, for the men in carrying the ties to the car for the purpose of loading); that the planks taken for that purpose were of the ordinary crossing planks used along the road; that the floor of the car was about 3 feet from the ground; that when he got there to load ties the platform had already been constructed, and he paid no particular attention to it, but saw it was there, and could observe it; that sometimes one man, and sometimes two, would carry one tie upon the platform to the car, and hand it to men on the car to load; that it had rained during the night and early morning, and the ties and plank were wet, and mud had been carried upon the planks and platform by walking upon them; that he observed this condition of the platform as he walked up and down on it, and felt the mud under his feet; that the platform was plainly to be seen, and he could observe it; that he had been carrying ties about two hours before the accident happened; that at the time of the accident he and another workman were carrying a tie; and that the other workman walked ahead and placed his end upon the car,. when the plaintiff, endeavoring to push the tie further up to the man on the car, fell and injured himself. Respecting his fall and injury, the plaintiff says his feet were still on the planks, which, as he was pushing the tie, slipped backward, and caused him to fall forward, and that in falling he struck his chin either on the edge of the tie or on the end of the car, and that the end of the tie pinched off the fleshy part of the end of the index finger of his left hand. The foreman, who was an eyewitness to the accident, testified that the planks did not slip, and that the plaintiff was standing upon the ties beyond the planks, pushing the tie up, when he Dunn v. Railroad. slipped and fell. In describing the injury on his chin, the plaintiff said: "My chin was scratched and bruised a little, and down my neck was also scraped slightly. The skin was just scratched a little. After I got home, some time after this accident, my chin and neck became discolored and swollen." Respecting what occurred when, after the accident, he called on Dr. Taylor, the local surgeon of the defendant, the plaintiff testified: "On the first visit the only thing needed was to dress my finger. I called his attention to my chin. When I called his attention to my neck, he said that was not anything, and did not think it would hurt me much.” The plaintiff further testified: "I first went to see Dr. Taylor on the 23d of April, 1902. I think I only went to see him about my condition during a period of about three weeks. After I quit going to see Dr. Taylor the swelling and discoloration and everything else on my neck disappeared. This scar on my neck and this running sore near the Adam's apple never developed and never discharged or became sore at all until long after I quit going to see Dr. Taylor. I cannot remember just exactly when this sore on my neck did come. Not long after I quit going to see Dr. Taylor my neck swelled up quite large, and the swelling disappeared, and then about six weeks after the accident I first noticed this sore develop on my throat. The sore came some little time before it commenced to discharge. This condition of my throat developed something like two months after the original swelling and discoloration had gone away." It also appears from the evidence of the several physicians that the injury was of a temporary character, and that the fistula on his throat can be cured by a simple surgical operation, concerning which Dr. Conroy, an expert witness for plaintiff, said: "The operation would not be a vital one. All that it would require would be that degree of skill and competency that we would expect of the average physician, who has given careful study of the ordinary, approved character and skill in 28 Utah-31 Dunn v. Railroad. his profession.' "There appears to be no evidence showing that the fistula was directly traceable to the injury. Under this and other testimony of similar import, the jury returned a verdict in favor of the plaintiff for the sum of $4,500, and judgment was entered accordingly. The case having been stated, as above, BARTCH, C. J., delivered the opinion of the court. At the time of the submission of the case to the jury the defense, inter alia, requested the court to charge as follows: "The court charges you in this case that, as matter of law, the plaintiff is not entitled to recover, and your verdict should therefore be for the defendant." This request was refused, and the action of the court in the premises has been assigned as error. The appellant contends that the entire record presented a case involving the principle of assumed risk of the servant, and showed such a state of facts as made it the duty of the court to so charge the jury, and we are of the opinion that this contention is well founded. Upon careful examination of the evidence, the conclusion seems irresistible that the plaintiff has shown no right of recovery. We are unable to perceive, from the proof, wherein the company was guilty of actionable negligence. The plaintiff's own testimony fails to show it. The platform was but a simple arrangement, constructed by the men who were to load the car, for their own convenience, out of material not furnished by the company for such purpose. It was only a temporary thing, of their own invention, to enable them to perform their work more easily. The company had furnished no appliances other than the car, and this could have been loaded in the ordinary way, without the platform. The injured knew this; had assisted in loading ties on a previous occasion; saw the platform, and how it was constructed; saw that it was wet and muddy; must have known, or without inconvenience could have learned, that the planks were not nailed to the ties; and, without making any objection whatever to the contrivance, or the manner of loading the car, voluntarily, with the |