Adams v. Bunker Hill & Sullivan Mining Co.

• Citation: 12 Idaho 637,89 P. 624
• Parties: EMMA ADAMS et al., Appellants, v. BUNKER HILL AND SULLIVAN MINING COMPANY, a Corporation, Respondent
• Decision Date: 24 November 1906
• Court: United States State Supreme Court of Idaho

89 P. 624

12 Idaho 637

EMMA ADAMS et al., Appellants, v. BUNKER HILL AND SULLIVAN MINING COMPANY, a Corporation, Respondent

Supreme Court of Idaho

November 24, 1906

On Rehearing April 13, 1907.

Syllabus by the Court.

A nonsuit should only be granted when the evidence wholly fails to support the demand of plaintiff.

[Ed Note.-For cases in point, see Cent. Dig. vol. 46, Trial, § 360.]

Where the evidence shows that a part of machinery of respondent was in a damaged condition, and that by reason thereof an employéin the discharge of his duty could become entangled in such machinery and lose his life or suffer great bodily injury through no fault of his, it is a prima facie case, and it is error to sustain a motion for nonsuit.

On Rehearing.

In an action against the master for damages caused by the death of the servant as a result of the master's negligence, the presumptions which arise in favor of the instincts of self-preservation and the known disposition of men to avoid injury and personal harm to themselves constitute a prima facie inference that the servant was at the time in the exercise of ordinary care and was himself free from contributory negligence. In case where the injury complained of resulted in the death of the injured person, the law presumes that such person exercised the measure of care which it was his duty to exercise.

[Ed Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 893.]

Where the evidence in a personal injury case is so uncertain as to leave it equally clear and probable that the injury resulted from any one of a number of causes that might be suggested,then and in that case a verdict for plaintiff would be pure speculation and could not be sustained; but where the evidence, although circumstantial, is such that it would appear possible that the injury resulted from any one of several causes, and yet it points to the greater probability that it resulted from the specific cause charged by the plaintiff, a nonsuit should not be granted. In the latter case the jury would be justified in returning a verdict in favor of the plaintiff, although it be possible that the injury may have resulted from some other cause. The law does not anticipate or attempt to exclude mere possibilities.

If upon any fair construction that a reasonable man might put upon the evidence, or any inference that might reasonably be drawn therefrom, the conclusion of negligence can be arrived at or justified, then the defendant is not entitled to a nonsuit but the question of negligence should go to the jury.

[Ed Note.-For cases in point, see Cent. Dig. vol. 46, Trial, § 338.]

Where it does not appear that the inspection and repair of the machinery with which the servant was working was a part of the servant's employment, and it also appears that the master was in a more favorable position to know its condition and to inspect and repair it, and the disrepair and an unsafe condition of the machinery is shown, and was not obvious to the servant, and injury resulted therefrom, and the servant was not familiar with or accustomed to such machinery, and this was known to the master, such facts make a prima facie showing of negligence on the part of the master.

APPEAL from District Court of the First Judicial District for Shoshone county. Hon. Ralph T. Morgan, Judge.

Plaintiffs commenced their action to recover $ 40,000 damages for the loss of life of the husband and father. At the close of the evidence for plaintiffs a motion for nonsuit was sustained and judgment for costs against plaintiffs. The appeal is from an order overruling a motion for a new trial. Reversed.

Judgment reversed with costs to appellants.

F. C. Robertson, Harry Rosenhaupt, Fred Miller and H. P. Knight, for Appellants.

The instinct of self-preservation and the disposition of men to avoid personal harm re-enforce an inference that a person killed or injured was in the exercise of ordinary care. (16 Cyc. of L. & Pr. 1056; Texas & C. Ry. Co. v. Gentry, 163 U.S. 353, 41 L.Ed. 186, 16 S.Ct. 1104; Choctow O. & G. C. Co. v. McDade, 191 U.S. 64, 48 L.Ed. 962, 24 S.Ct. 24; Milwaukee N.Y. & St. P. R. Co. v. Kellogg, 94 U.S. 469, 24 L.Ed. 256.)

Knowledge of the risk of the danger to which deceased was exposed is not to be presumed in proof of contributory negligence, but must be brought home to the employee. (Missouri P. R. R. Co. v. Lemberg, 75 Tex. 61, 12 S.W. 838, Smith v. Peninsular Car Works, 60 Mich. 501, 1 Am. St. Rep. 542, 27 N.W. 662; Wabash R. R. Co. v. McDaniel, 107 U.S. 454, 27 L.Ed. 605, 2 S.Ct. 932.)

It is the province of the jury to determine as to the defendant's negligence under the facts in this case. ( Sioux City & Pacific R. R. Co. v. Stout, 17 Wall. 657, 21 L.Ed. 745; Labatt on Master and Servant, 330, and cases cited.)

In the absence of proof that the deceased was guilty of negligence, the jury was authorized to infer the want of any from the circumstances of the case, and the disposition of men to take care of themselves and keep out of difficulty may be taken into consideration by the jury. (Wash. & G. R. Co. v. Gladmon, 15 Wall. 82 U. S.) 401, 21 L.Ed. 114.)

In civil cases it is sufficient if the evidence agrees with and supports the hypothesis which it is adduced to prove, and it is not necessary that it should exclude other hypotheses in order to enable the plaintiff to recover, but the case should be submitted to the jury, and the jury should decide according to the reasonable probability of the truth. (Greenleaf on Evidence, 5th ed., sec. 13a; Union Stockyards Co. v. Conoyer, 41 Neb. 617, 59 N.W. 950; Scheopper v. Hancock Chemical Co., 113 Mich. 582, 71 N.W. 1081; Woods v. Chicago Ry. Co., 108 Mich. 396, 66 N.W. 328; Western Travelers' Acc. Assn. v. Holbrook, 65 Neb. 469, 91 N.W. 276, 94 N.W. 816; Barnowski v. Helson, 89 Mich. 523, 50 N.W. 989, 15 L. R. A. 33; Lillstrom v. Northern P. R. R. Co., 53 Minn. 464. 55 N.W. 624, 20 L. R. A. 587; Philadelphia etc. R. R. Co. v. Huber, 128 Pa. 63, 18 A. 334, 5 L. R. A. 439; Portland Min. Co. v. Flaherty, 111 F. 312, 49 C. C. A. 361; Pruke v. South Park Foundry Co., 68 Minn. 305, 71 N.W. 276; Indianapolis P. & C. Ry. Co. v. Collingwood, 71 Ind. 476; Miller v. Inmen & Co., 40 Or. 161, 66 P. 713; Hays v. Galligher, 72 Pa. 136; Indianapolis P. & C. Ry. Co. v. Thomas, 84 Ind. 197.)

The proximate cause of an injury is ordinarily a question for the jury. It is to be determined as a fact in view of all the circumstances attending it as shown by the evidence. ( St. Louis etc. Ry. Co. v. Needham, 69 F. 823, 16 C. C. A. 457; Armour v. Hahn, 111 U.S. 318, 28 L.Ed. 440, 4 S.Ct. 433.)

M. A. Folsom and A. H. Featherstone, for Respondent.

In order to entitle plaintiff to recover for personal injuries, or to recover for the death of one owing the duty of support to plaintiff, it must be shown affirmatively that defendant has been guilty of negligence which resulted in such injuries or death. (Patton v. Texas & P. Ry. Co., 179 U.S. 661, 663, 45 L.Ed. 361, 21 S.Ct. 275.)

The rule requiring the master to supply safe machinery and keep it in reasonable repair does not apply to the defects arising which are not of a permanent character, and do not require the help of skilled mechanics to repair, but which may easily be and usually are remedied by the workmen, and to repair which proper and suitable materials are supplied; there is no duty resting on the master to inspect during their use those common tools and appliances with which every one is conversant. (Creagan v. Marston, 126 N.Y. 568. 22 Am. St. Rep. 854, 27 N.E. 952; Whittaker v. Bent, 167 Mass. 588, 46 N.E. 121; Wachsmuth v. Shaw Elec. Co., 118 Mich. 275, 76 N.W. 497; Garrigan v. Falls River Co., 158 Mass. 596, 33 N.E. 652.)

The testimony shows that Adams frequently stopped the machinery and tightened the loose rivets, and that it was his particular duty to supervise the machinery and see that it was in proper repair. If there were defects in the belt, there could be no recovery. (Bedford Belt Co. v. Brown, 142 Ind. 659, 42 N.E. 359; McDermott v. Iowa Falls Co., 85 Iowa 181, 52 N.W. 181; Beckman v. Consol. Coal Co., 90 Iowa 252, 57 N.W. 889; Conroy v. Clinton, 158 Mass. 318, 23 N.E. 527; Johnson v. Hovey, 98 Mich. 343, 57 N.W. 172; Jennings v. Iron Bay Co., 47 Minn. 111, 49 N.W. 685; Maes v. Tex. & N. O. R. Co. (Tex. Civ. App.), 23 S.W. 725; Minty v. Union P. Co., 2 Idaho 471, 21 P. 660.)

Adams knew of the conditions and assumed the risk. No principle of law is better settled in this state than the principle that workmen assume the risk of dangers known to them, or which by ordinary care they might have known. (Drake v. Union P. R. Co., 2 Idaho 487, 21 P. 560; Haner v. Northern Pacific Ry. Co., 7 Idaho 13, 35 P. 700, 122 L. R. A. 725; Holt v. Railway Co., 4 Idaho 443, 40 P. 56.)

The following cases illustrate the principle that a workman with little experience assumes the risk of ordinary defects Connelly v. Eldredge, 160 Mass. 566, 36 N.E. 469; Wilson v. Mass. Cotton Mills, 169 Mass. 67, 47 N.E. 506; Sanborn v. Atchinson Ry. Co., 35 Kan. 292, 10 P. 1860;...