¶1Appellant brought this action to recover damages for personal injuries, which, he alleges, were caused through the negligence of respondent. Appellant, in his complaint, in substance, alleged: That on the 9th day of February, 190Y, he was in the employ of Zion’s Co-operative Mercantile Institution, a corporation engaged in business in Salt Lake City; that on the date aforesaid respondent was engaged in the plumbing business in Salt Lake City, and, on said date, by two of its employees, was doing some plumbing work for appellant’s employer aforesaid in its bottling or drug department, of which appellant was the superintendent; that, in doing said plumbing work, the servants of said respondent were negligent and careless, and negligently suffered and permitted a certain large Stilson wrench to be and remain on a certain stepladder without giving any notice or warning to the appellant that said wrench was left lying on the top of said ladder; that while appellant was engaged in the discharge of his duties, and while ignorant of the presence of said wrench, it fell from said ladder and struck appellant on his head and greatly injured him, to his damage, etc. The defendant answered denying all acts of negligence, and further denied liability for the acts complained of, and, as an affirmative defense, pleaded contributory negligence and assumption of risk. Upon the foregoing issues the case wa® submitted to a jury, who rendered a verdict for respondent. A judgment was entered accordingly, and appellant presents the case here .on appeal.
¶2Appellant filed a motion for a new trial upon the ground, among others, that the evidence was insufficient to sustain the verdict, and assigns the rulings of the court in refusing to grant a new trial upon that ground as error. The par*24ticular reasons urged by appellant’s counsel why the court erred in this regard are: (1) That the evidence, as a matter of law, established the negligence of the respondent as charged; and (2) that under the undisputed evidence appellant was not guilty of contributory negligence. In other words, counsel contend that “there is no contributory negligence in this case.” Appellant, in substance, testified': That on February 9, 1907, he was in the employ of Zion’s Co-operative Mercantile Institution, a corporation, and was discharging the duties of superintendent of its bottling- or drug department. - That at that time he observed two plumbers at work in the room where he was engaged who were putting in a new sink in place of the old one which they had just removed; that in connection with said work they were also putting in a vent pipe; that this pipe was being put up towards the ceiling of the room over the window; that in putting up the pipe the plumbers were using a stepladder about ten feet high; that there was a carboy filled with ammonia in the room, and appellant told the plumbers, “Don’t drop anything, for this is ammonia, and we will get in trouble if it is broken;” that the plumbers were not in the same room with appellant all of the time; that while the plumbers were out of the room appellant had occasion to leave the room where he and the plumbers were at work; that the stepladder used by the plumbers was standing on the floor leaning against the wall and was near the door through which appellant desired to. pass; that in attempting to pass through the door appellant, in describing his acts, says: “I pulled the door open, and the corner just jarred the stepladder enough so that the wrench fell off, and it hit me on the head and bounced off. I fell right- back against the bench stunned.” Appellant also testified that before opening the dóor he could see that the door, if opened, “was going to come in contact with the ladder.” He further stated that he did no-t know that the wrench was left on top of the step-ladder. On cross-examination appellant said: That he had seen the plumbers working in the room on the *25day before tbe accident; tbat be was told wbat tbey were to do; tbat be knew tbat tbey bad been working on tbe ladder witb tools; tbat when tbey were connecting tbe pipe be saw them using tbe wrencb; tbat be did not see tbe wrencb when be was about to pass through tbe door; but tbat, “possibly, if I bad glanced to tbe top of tbe ladder, I could have seen tbe wrencb sticking over;” tbat tbe ladder rested against tbe wall; tbat there was a small platform on which tbe wrencb was lying; and tbat appellant did not “think to look on tbe top of tbe ladder to see whether there was anything there when I went through tbe door.”
¶3Tbe two plumbers, in substance, testified: Tbat in doing tbe work aforesaid tbey used two stepladders, and' among other tools tbe Stilson wrencb referred to by appellant; tbat tbe wrench weighed four and one-half pounds; tbat tbe platform on top of tbe stepladder was eight and one-balf inches wide by eighteen inches long, and tbe wrencb was eighteen inches long; tbat just prior to tbe accident one of tbe plumbers was working on one stepladder and tbe other was on tbe other; tbat is, on tbe one from which tbe wrench fell; tbat at this point tbe plumber who was on tbe stepladder on which tbe wrench was left was required to leave tbe room and go down into tbe cellar for a pipe, and tbe other plumber followed tbe first one out of tbe room; tbat tbe top of tbe stepladder inclined towards tbe wall, and tbe plumber left tbe wrencb lying on tbe top of tbe stepladder against tbe wall so that tbe wrench extended beyond tbe top of tbe ladder about two inches. Tbe witness then continues tbe testimony as follows: “When I came back upstairs, this stepladder was across tbe room. I asked tbe plaintiff (appellant) wbat was tbe matter. He first told me tbe wrencb bad fallen on him. . . . He told me be went to move tbe ladder and got approximately three feet from where it was standing when tbe wrencb fell. . . . • He said this was bis own fault, tbat be bad no business to move tbe ladder.” Tbe witness further said tbat tbe two plumbers were out of tbe room about ten minutes, during which time tbe accident occurred. As before stated, *26tbe two plumbers practically agree in their statements, so that it is not necessary to repeat them.
¶4In view of the foregoing facts, is counsel’s contention tenable that in view of the evidence, respondent is guilty of negligence as a matter of law, and that
¶5Counsel also urge that the court erred in submitting the question of contributory negligence to the jury, and they excepted to the instruction given by the court on that question. Counsel do not contend that the instruction given by the court on its own motion upon the subject of contributory negligence did not correctly state the law; but they insist that it was , error to give the instruction for the reason that the question of contributory negligence, in view of the evidence, was not in the case. From what we have said in passing on the evidence, it necessarily follows that the mere fact of submitting the question of contributory negligence to the jury did not constitute error. Counsel, however, contend that the court erred in modifying a certain request which they asked upon the subject of
¶6Another assignment relates to the giving of a certain charge in which the court submitted to the jury the question of whether the respondent, as the ultimate employer, was liable for the alleged negligent acts of the two plumbers. There was considerable controversy as to whether the plumbers, in doing the work in question, were or were not under the direct supervision and control of Zion’s Cooperative Mercantile Institution. The court, however, submitted that question to the jury in the
¶7If we are right in the foregoing conclusions, then counsel’s contention that the court erred in giving paragraph 14 of the instructions also fails. The only objection to this instruction is that the court in effect
¶8In the light of the whole evidence and the instructions given to the jury, we are of the opinion that appellant at *28least has suffered no prejudice, nor has be made any sueb error appear from tbe record.
¶9Tbe judgment is therefore affirmed, with costs to respondent.