77 P. 515 (Mont. 1904), Shaw v. New Year Gold Mines Co.

Citation:77 P. 515, 31 Mont. 138
Opinion Judge:PER CURIAM.
Party Name:SHAW v. NEW YEAR GOLD MINES CO.
Attorney:A. C. Gormley, for appellant. Ransom Cooper, for respondent. CLAYBERG, C. C. POORMAN and CALLAWAY, CC., concur.
Judge Panel:MILBURN, J., not having heard the argument, takes no part in this decision.
Case Date:July 09, 1904
Court:Supreme Court of Montana

Page 515

77 P. 515 (Mont. 1904)

31 Mont. 138

SHAW

v.

NEW YEAR GOLD MINES CO.

Supreme Court of Montana

July 9, 1904

Commissioners' Opinion. Appeal from District Court, Cascade County; J. B. Leslie, Judge.

Action by E. A. Shaw, as administrator of the estate of Joseph L. Adams, deceased, against the New Year Gold Mines Company. From a judgment for defendant, plaintiff appeals. Affirmed.

A. C. Gormley, for appellant.

Ransom Cooper, for respondent.

CLAYBERG, C. C.

Appeal from a judgment of nonsuit. Joseph Adams, who was plaintiff's intestate, brought suit against the New Year Gold Mines Company to recover damages for personal injury caused by the alleged negligence of defendant. The material allegations of the complaint as to this negligence are as follows:

"(4) That the plaintiff, at the time of the accident hereinafter set forth, and for some time prior thereto, was actually engaged and employed by the defendant as a miner in said Old Bach mine; that the plaintiff was employed as such miner in drilling, blasting, and driving a tunnel in said mine.

"(5) That it was the duty of the defendant to provide and maintain a reasonably safe place for the plaintiff to work in, and to keep and maintain said tunnel in which plaintiff was working in a safe condition, so as not to expose the plaintiff to any unnecessary or extraordinary hazard or peril.

"(6) That the defendant failed and neglected to perform and discharge its said duty to the plaintiff, and knowingly and negligently permitted the place in which plaintiff was working to become unsafe, thereby exposing the plaintiff to extraordinary hazard and peril, as is more particularly set out in the next paragraph herein.

"(7) That on the morning of the 25th of September, 1900, while the two men employed on the day shift in said tunnel were at work therein, and immediately after the two miners aforesaid had loaded a hole with blasting powder in the bottom of the tunnel, as it was their custom and duty to do at said time, the foreman of the defendant came to the place where said men were working, and ordered and directed them not to fire the hole loaded by them with blasting powder as aforesaid; that said men obeyed the instructions of said foreman, and left the said blast as it was, and the same remained unexploded until the accident to the plaintiff as herein stated; that said men on the day shift quit work at 6 o' clock on said day, and that the plaintiff and his partner on the night shift went to work, as was their duty, at 7:30 p. m. on said day, in the same place where said day shift had been working; that the plaintiff, shortly after commencing work as aforesaid, started in to clean up the bottom of said tunnel which had been left by the day shift, and which it was the duty of the plaintiff to do, and plaintiff accordingly began to drill holes in the bottom of said tunnel a few feet from the face of the drift, for the purpose of loading them with blasting powder and cleaning up said bottom, and while the plaintiff was so drilling in said place the charge of blasting powder loaded by the day shift in the morning as aforesaid exploded, which explosion caused plaintiff to receive severe and grievous injuries, his left eye being blinded and the sight in the other eye being seriously affected, his jaw being fractured, most of his teeth being knocked out, his side and chest being severely bruised and injured, his left hand being almost blown off, so that it was necessary to have the same amputated, his right hand being rendered crippled and useless, and suffering also a compound fracture of the left arm between the below and the wrist, said injuries causing him great and excruciating pain and suffering, and confining him to the house and hospital for several months; that when plaintiff went to work on the evening of September 25th as aforesaid, and up to the time when said accident occurred, plaintiff did not know and had no means of knowing that there was at said place, or anywhere in said tunnel, any charge or charges of blasting powder not shot off, and could not have discovered the fact except by being informed thereof; that the defendant and its said foreman knew, or by the use of reasonable diligence might have known, of the existence of said unexploded blast, and of the danger to

Page 516

the plaintiff therefrom, and it was the bounden duty of the defendant and its said foreman to convey such information to plaintiff, but that the defendant and its said foreman failed and neglected so to do, and willfully, knowingly, and negligently allowed and directed the plaintiff to go to work in said place, where his duty called him, in ignorance of said danger; that said explosion occurred and plaintiff was injured as aforesaid without any fault or negligence on his part, but solely because of the defendant's negligence as aforesaid; that the said foreman was the vice principal of the defendant in all matters relating to the working and operating of said Old Bach mine, and with reference to the employment of the plaintiff and the other miners mentioned herein, and that the negligence of said foreman as aforesaid was the negligence of the defendant."

"(9) That by reason of the said neglect and omission of the defendant to keep and maintain a safe place wherein plaintiff was required to work as aforesaid as defendant's employee, and by reason of the injuries suffered by plaintiff solely because of said negligence and want of ordinary care on the part of the defendant, as herein before set forth, the plaintiff has been damaged by the defendant in the sum of thirty thousand dollars."

The answer of defendant denies that the injuries to plaintiff were caused by the negligence of defendant. Sets up contributory negligence on the part of plaintiff. Alleges that he had been employed at the mine for some time, and knew the conditions, and knew that in running the tunnel it was necessary for the employés to drill holes, put blasts in the rock in the breast of the tunnel, and explode them; that he had been engaged for a long time in the performance of that kind of work, and well knew that sometimes such blasts would miss fire and fail to go off, and that it was sometimes difficult for the man who put in blasts to ascertain whether all the blasts fired went off; that the danger from unexploded blasts was incident to this class of employment; that those engaged in the work of running the tunnel assumed the risk; that he voluntarily continued his services, with full knowledge of the risk, without objection; and that, if plaintiff was injured by the negligence of any one, it was the negligence of fellow servants, for which defendant was not responsible.

At the close of plaintiff's testimony, defendant moved for a nonsuit, which was granted, and judgment entered in favor of defendant. From this judgment, plaintiff appeals.

1. Counsel for appellant insists that, by the decisions of this court upon appeals from judgments of nonsuit, it is well settled that whatever the evidence tends to prove will be considered as proven, and that a judgment upon a nonsuit will not be sustained unless the conclusion from the facts necessarily follows, as a matter of law, that no recovery could be had in any view which could be reasonably taken from the facts which the evidence tends to prove. Cain v. Gold Mountain M. Co., 27 Mont. 529, 71 P. 1004; Coleman v. Perry, 28 Mont. 1, 72 P. 42; Ball v. Gussenhoven (Mont.) 74 P. 871; Michener v. Fransham (Mont.) 74 P. 448; Nord v. B. & M. M. Co. (Mont.) 75 P. 681; McCabe v. Montana Central Ry. Co. (Mont.) 76 P. 701; Cummings v. H. & L. S. & R. Co., 26 Mont. 434, 68 P. 852. Under this rule, however, the record must contain competent testimony fairly tending to affirmatively prove the allegations of the complaint. The burden of proof is upon plaintiff, and is not satisfied if the conclusion to be reached from the testimony offered is merely a matter of conjecture. If such conclusion be equally consonant with the truth of the allegations and with some other theory or theories inconsistent therewith, it becomes a mere conjecture, and the rule of the burden of proof is not satisfied. Thus, in an ordinary case of negligence, like the one under consideration, plaintiff has the burden of proving the negligence of defendant as alleged, and also that such negligence was the proximate cause of plaintiff's injury. If the testimony leaves either the existence of negligence of defendant, or that such negligence was the proximate cause of the injury, to conjecture, it is insufficient to...

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