Maloney v. Winston Bros.

Citations

• 18 Idaho 740
• 111 P. 1080
• 1910 Ida. LEXIS 76

Syllabus

<p>Instructions — Personal Injury — Hazardous Undertaking — Assumption op Bisk — Duty op Master — Duty to Make Place op Work Safe — Proof of Negligence — Sufficiency of Evidence — Excessive Damages.</p> <p>(Syllabus by tbe court.)</p> <p>1. Instructions examined, considered and held not to be erroneous,</p> <p>2. Where a laborer seeks and obtains employment at a hazardous and dangerous task and which must necessarily be prosecuted in a dangerous place, he thereby assumes the ordinary risks incident to the employment and attendant on the place where the work is prosecuted, but he does not thereby assume any additional burden of risk superimposed by reason of the master’s neglect of the duty that rested upon him to have the place inspected and maintained in a reasonably safe condition, as a place of the kind should be maintained in which employees are to prosecute their work.</p> <p>3. In the case of a hazardous work like driving a railroad tunnel through the mountain, an increased risk is assumed and an increased duty is imposed by law on both the master and servant proportionate to the dangers of the place and the risks of the employment — on the master to exercise increased care and diligence in maintaining the place in as safe a condition as the nature of the work will permit, and upon the servant to either assume or avoid patent and obvious dangers and those necessarily incident to the work and the place in which the work is being prosecuted.</p> <p>4. It is the established rule of law that the liability of the master depends upon the character of the act in the performance of which the injury arises, and not upon the grade or rank of the employee or fellow-servant to whom the negligent act is traceable.</p> <p>5. In an action for personal injuries received by and on account of the negligence of the master, negligence must be shown, and this may be done by positive testimony of the commission of a wrongful act by the master or the neglect by him to discharge a po