
    GEANAKOULES v. UNION PORTLAND CEMENT COMPANY.
    No. 2326.
    Decided June 20, 1912.
    Rehearing Denied September 9, 1912
    (126 Pac. 329).
    1. Master and Servant — Variance—Materiality. In an action against a cement manufacturer for injury to an employee, caused by walking on burning slack and hot ashes, which were covered by cement dust, there was no fatal variance between an allegation that plaintiff had business with defendant, and, being requested so to do by defendant, entered upon its premises, and proof that, on plaintiff applying for -work, defendant’s foreman told him that he would give him a position, and for him to start to work, but that before doing so plaintiff inquired for and was directed to the toilet, in going toward which he sustained the injuries complained of. (Page 488.)
    2. Appeal and Error — Objections—Variance—Necessity. As a general rule, before a variance is available, the evidence must be objected to when offered. (Page 488.)
    3. Master and Servant — Existence oe Relation — Evidence. Evidence that plaintiff applied to defendant’s foreman for work, and was told that the foreman would give him a position, that he could “start with the whistle,” and to take off his coat and begin work, shows the existence of the relation of employer and employee, and does not show that plaintiff was a trespasser, or a bare licensee. (Page 488.)
    4. Tbial — Instructions — Refusal. Instructions, substantially covered by those given, are properly refused. (Page 489.)
    Appeal from District Court, Second' District; Hon. J. A. Howell, Judge.
    Action by George Geanakoules against tbe Union Portland Gement Company.
    Judgment for plaintifh Defendant appeals.
    Afpiemied.
    
      H. H. Henderson and John 0. Dams for appellant.
    
      Halverson & Pratt for respondent.
   STRAUP, J.

This is an action to recover damages alleged to have been sustained by tbe plaintiff through tbe negligence of tbe defendant. Tbe charged negligence is that tbe defendant, who was engaged in operating a cement plant at Devil’s Slidie, Utah, for tbe manufacture of cement, negligently distributed on the -ground, near its plant and a toilet used by its employees “and others having business with said defendant,” a large quantity of burning slack and hot ashes, which were covered with fallen cement dust from tbe operation of tbe plant and were bidden from view; tbat tbe defendant failed and omitted to place guards or signals of warning about tbe place to indicate tbe danger of tbe bot asbes; and tbat tbe plaintiff, on tbe day of tbe accident, “having business with tbe said defendant, and being requested so to dlo by tbe defendant, entered upon defendant’s premises, and while there, finding it necessary to go to said toilet, be started thereto, and, without knowledge of tbe dangerous character of tbe burning slack and bot asbes, be stepped therein,” and was burned and injured. Tbe case was tried to tbe court and a jury. A verdict was rendered in favor of tbe plaintiff in tbe sum of $900. Tbe defendant appeals.

There is evidence to show tbat in tbe operation of the plant tbe defendant from its furnaces placed bot asbes and coals about 150 feet from tbe boiler room. Tbe asbes were spread on tbe ground, covering a space of about twenty-five feet wide and twenty-five feet long, to level tbe ground. They and tbe surface of tbe ground about there were covered with cement dust. There was nothing to indicate tbe presence of tbe bot asbes. On tbe dlay of the injury tbe plaintiff in tbe forenoon entered tbe defendant’s premises in search of work. He inquired for and was directed to tbe foreman, who was about tbe plant. Tbe foreman told him to return “after dinner.” Tbe plaintiff did so. As testified to by tbe plaintiff, tbe foreman then told him tbat “I’ll give you a job; you can start with tbe whistle; take off your coat to start on your job.” Tbe plaintiff took off bis coat; but, before starting on bis work, be inquired for and) was directed to tbe toilet. In going toward it and without knowledge of the presence of tbe bot asbes, be stepped into them and was burned and injured.

At tbe conclusion of plaintiff’s evidence tbe defendant made two motions: One, “I move at this time tbat all the evidence given by the plaintiff and! by other witnesses tbat there was a hiring of tbe plaintiff by tbe defend-amt be struck out, for tbe reason tbat tbe issue was not embraced in tbe pleadings;” tbe other, for a nonsuit, on tbe ground that the plaintiff “was a trespasser, or at least a mere licensee, and that the defendant was not under any duty whatever to furnish a safe place for plaintiff to travel in going to the closet.” Both motions were overruled. The rulings are complained of. The testimony asked to be stricken was adL mitted without objection. The effect of counsel’s argument is to show a variance between the complaint and the proof. The ultimate facts showing what legal duty was owing by the defendant to the plaintiff were alleged with considerable uncertainty. The allegations in this respect are: “The plaintiff, having business with the said defendant, and being requested so to do by the defendant, entered upon the defendant’s premises.” In support of this the plaintiff proved the facts heretofore referred to. We do not think this, under the statute (Schuyler v. So. Pac. Go., 37 Utah, 581, 109 Pae. 458), constituted a fatal variance. Furthermore, the general role as to the mode of making objection to the introduction of evidence which does not correspond to the allegations of the pleadings is to object lait the time it is offered on the ground of a variance. (13 Ency. Ev. 742.) We think no error was committed in overruling the motion to strike the evidence. We are also of the opinion that the motion for a nonsuit was properly overruled. The evidence on his behalf does not show the plaintiff a trespasser or a bare licensee.

Complaint is also made of the refusal of the court to charge as requested by the defendant. Both the theories of the plaintiff and the defendant were fully submitted to the jury. The charge on the defendant’s theory substantially embodied the elements contained in its requests, except that of directing a verdict in its favor on the grounds stated in the motion for nonsuit, which it was not entitled to. Upon the questions raised and! presented, we think the judgment should be affirmed, with costs.

Such is the order.

FRICK, C. I., and McOARTY, J., concur.  