Olsen v. Triangle Mining Co., 50 Utah 521

assignments of error and the trial court's instructions given to the jury, and, after doing so, we are convinced that the court in its instructions to the jury stated the issues in fairness and without any prejudicial error to the plaintiff. In view of the evidence disclosed by the record, it would subserve no good purpose to here enter into a detailed discussion of these assignments of error.

According to plaintiff's own testimony, when he engaged his services to the defendant, he was of full age; for more than two years immediately previous he had been employed in and about various mines. Not only had he seen others at work, drilling and blasting rock with pow- 2 der, but he too had worked as a miner sufficiently long for his own experiences to have taught him the dangers attending the use of powder for blasting, as we think the record conclusively shows. If he was not skilled in the use of powder in blasting, if he was incapable of appreciating the dangers attending its use, in offering his services to the defendant he should have apprised it of his lack of knowledge and inability to do that which, as the record here shows, miners generally are called upon to do in the performance of their duties while engaged in the work of mining for their employers. The defendant had the right to assume, when plaintiff offered his services to it, that he had sufficient knowledge and skill to properly discharge the duties he was attempting to perform at the time the accident in question occurred. Union Pac. Ry. Co. v. Estes, 37 Kan. 715, 16 Pac. 131; Sunney v. Holt, etc. (Ohio C. C.) 15 Fed. 880; Huber v. Jackson & Sharp Co., 1 Marvel's (Del.) 374, 41 Atl. 92; Pittsburgh, Cincinnati & St. Louis Ry. Co. v. Adams, 105 Ind. 151, 5 N. E. 187; Whittaker v. Coombs, 14 Ill. App. 498; Wharton v. Tacoma Fir Door Co., 58 Wash. 124, 107 Pac. 1057.

It is contended by plaintiff that defendant operated its mines without any system for the carrying on of its work; that it failed to promulgate rules and regulations for the government and direction of its employees while engaged in drilling and charging holes with powder, and 3,4 exploding charged holes. True, in the case at bar, no

Appeal from Salt Lake County, Third District

rules had been promulgated by defendant calculated to guard against accidents in the work plaintiff was engaged in doing— a work necessarily hazardous and attended with great risk. It is well settled law that a master is not justified in conducting a hazardous and complicated business without some system of rules and regulations calculated to lessen the risks his servants will necessarily incur while engaged in their employment. However, in the case at bar, this doctrine has no application. The record conclusively shows that the plaintiff alone was engaged in the performance of all the duties attending the work he was doing for the defendant when the accident in question occurred. That he was sufficiently mature in years, experienced, and competent, not only the testimony of many witnesses who were experienced miners, but the testimony of the plaintiff himself at the trial, very conclusively shows.

5

We fail to find any testimony in the record tending to show that the work plaintiff was called upon to do should have been methodized by formal rules, or that such rules in the slightest degree would have avoided the accident complained of.

In Labatt's Master and Servant, vol. 3, p. 2951, in speaking of rules in the carrying on of work in cases where necessity is shown, it is said:

6

"But in the absence of evidence showing that rules would be useful or feasible under the circumstances, the master cannot be found negligent in not having promulgated them. It is therefore error to leave the case to the jury where the plaintiff has offered no evidence which indicates that other employers in the same business had promulgated any such rule, or that the suggested rule was necessary or practicable, or that the necessity and propriety of making such rule was so obvious as to make the question one of common knowledge and experience."

McCarty, District Judge, sitting in the case of Fritz v. Electric Light Co., 18 Utah, 493, 56 Pac. 90, in speaking for this court, says:

"There are certain kinds of employment where, on account of their nature, it becomes necessary, and it is the duty of the master, to promulgate and publish rules and regulations for the guidance and government and safety of its employees. Especially is this true where a large number of persons are at work and the danger or safety of the employment depends largely upon all the employees performing their duties Vol. 50-34

Olsen v. Triangle Mining Co., 50 Utah 521

promptly at stated times and in a given manner. But we do not understand the rules to apply to cases such as the one in question where the very nature of the employment makes it dangerous, and the dangers incident thereto and growing out of it are of common knowledge and are fully known to and understood by the servant, and the safety of others cannot be imperiled in any way by any act or omission of his in the performance of his duties, and his safety depends wholly upon the degree of skill, care, and caution used by himself, and not upon that of his fellow servants. In fact, it is not contended that the accident was due wholly or in part to any act or omission of his fellow servants; therefore the defendant cannot be held liable in this case on account of its failure to furnish its employees with printed rules, as the record shows conclusively that such failure did not in any way contribute to the accident."

* * *

To the same effect, see Stone, Adm'r v. Union Pacific R. Co., 35 Utah, 305, 100 Pac. 362; Benfield v. Vacuum Oil Co., 75 Hun, 209, 27 N. Y. Supp. 16; Pern v. Wussow, 144 Wis. 489, 129 N. W. 622.

There is no evidence disclosed in the record here that mine operators promulgate rules in any case for the government of their employees when they are engaged in the kind of work in question. On the other hand, it appears from the record here that the usual custom among miners and the one generally adhered to in mining operations is otherwise, and best stated by the plaintiff's own witness, Leonard G. Hardy, when he says:

"The procedure of a miner always counting his shots to see if he hears an explosion from each of his charges of powder is one that is universally followed by miners. It is thoroughly well known and is recognized by all miners; * and one cannot be entirely safe unless he thoroughly examines each of the places where he puts in charges of powder. * There is no way in which the danger of injury can be avoided, except a careful observation by the miner himself of the place where he has put in the holes."

The record here abounds with convincing proof that the plaintiff failed to do the things and take the precaution for himself that miners generally do while engaged in their work. As we view the record, no negligence was shown 7,8 on the part of the defendant contributing to the injury complained of by plaintiff; nor do we find any prejudicial

Appeal from Salt Lake County, Third District

error committed by the district court in the trial of the case. The judgment therefore must be affirmed, with costs to respondent.

It is so ordered.

FRICK, C. J., and MCCARTY, J., concur.

UTAH ASSOCIATION OF CREDIT MEN v. McCONNELL

No. 3018. Decided September 10, 1917. Rehearing denied October 6, 1917. (167 Pac. 817.)

1.

ASSIGNMENTS FOR BENEFIT OF CREDITORS-DIRECTORY STatutes, Comp. Laws 1907, sections 84-104, with reference to assignment for the benefit of creditors, is merely directory, and not to the effect that an insolvent debtor may not make a valid assignment in conformity with the rules of the common law. (Page 539.)

2. ASSIGNMENTS FOR BENEFIT OF CREDITORS-COMMON-LAW ASSIGNMENT-COLLATERAL ATTACK. An assignment under which all creditors participated and were to receive their just benefits without compliance with the statute with reference to assignments was valid, and more especially one that could not be questioned by defendant in a suit by the assignee to recover damages for the breach of a contract to purchase the property. (Page 542.)

3. VENDOR AND PURCHASER-SALE-EVIDENCE-SUFFICIENCY.

In an

action for breach of contract by plaintiff assignee for the benefit of creditors against defendant purchaser of the property, evidence held sufficient to show a valid contract of sale between plaintiff and defendant by telegrams and letters between the parties. (Page 542.)

Appeal from District Court, Third District; Hon. C. W. Morse, Judge.

Action by the Utah Association of Credit Men against R. N. McConnell.

Judgment for plaintiff. Defendant appeals.

AFFIRMED with costs to plaintiff.

Skeen Bros. for appellant.

Thos. O. Sheckell and Stephens & Smith for respondent.

Utah Assn. of Credit Men v. McConnell, 50 Utah 531

APPELLANT'S POINTS

The rule of law is well established that an offer to sell imposes no obligation on either party until accepted according to its terms, and that a proposal to accept, or an acceptance upon terms varying from those offered, is a rejection of the offer and ends the negotiations, unless the offer is renewed or the proposed modification accepted, and the offer which has been rejected cannot be revived by a tender of an acceptance of it. (Minn. & St. Paul R. R. Co. v. Columbus Rolling Mill Co., 119 U. S. 149, 30 L. Ed. 376.) And the acceptance must correspond to the offer on every point, leaving nothing open for future negotiations. (1 Page on Contracts, 74, paragraph 45.) If the acceptance attempted leaves open the adjustment of the price, or the time of delivery or a payment, it is of no effect. (1 Page on Contracts, 75; Sault Ste. etc., Co. v. Simmons, 41 Fed. 835; Decker v. Gwinn, 95 Ga. 518, 20 S. E. 240; Shepherd v. Carpenter, 54 Minn. 153, 55 N. W. 906.)

Much controversy has been had as to whether or not where there is a statute as in this state on assignments for the benefit of creditors, it is exclusive in its effect, and abolishes the so-called "Common Law Assignment for the Benefit of Creditors." In the light of statutory enactments, the title on "Assignment for the benefit of creditors" must be held to "establish the law of the state," and by implication to establish that assignment for the benefit of creditors can be made in no other way. In construing section 2489, the Supreme Court of this state has said that that section clearly means that the common law is abrogated in so far as it is repugnant to the statutes of this state. In Rio Grande Western Railway Company v. Salt Lake Investment Company, 35 Utah, 528 (1909), the court decided, among other things, that title by adverse possession could be secured in Utah only pursuant to the provisions of the statutes. Yet it will appear that the sections on adverse possession, in title 88, Chap. 3, are affirmative in language. The court referring to section 2489, supra, said:

"This, by implication at least, excludes the common law from all subjects that are regulated by statute." And later