Alaska-Treadwell Gold Min. Co. v. Cheney

• Decision Date: 10 June 1908
• Docket Number: 1,514.
• Citation: 162 F. 593
• Parties: ALASKA-TREADWELL GOLD MINING CO. v. CHENEY.
• Court: U.S. Court of Appeals — Ninth Circuit

162 F. 593

ALASKA-TREADWELL GOLD MINING CO. v. CHENEY.

No. 1,514.

United States Court of Appeals, Ninth Circuit.

June 10, 1908

Malony & Cobb and John Flournoy, for plaintiff in error.

Z. R Cheney, R. W. Jennings, and L. S. B. Sawyer, for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge.

The defendant in error, who is administrator of the estate of Ole Linge, deceased, was plaintiff in the court below, where he brought the action to recover damages for the death of Linge by reason of the alleged negligence of the plaintiff in error, the Alaska-Treadwell Gold Mining Company. The case was tried with a jury and a verdict for the plaintiff was returned. The defendant moved for a new trial on various grounds, and also for an arrest of judgment upon the ground that it was conclusively shown by the evidence that the appointment of the plaintiff as administrator of the estate of Linge was void. The motion for a new trial was denied, and the motion in arrest of judgment was granted. Judgment was thereupon rendered dismissing the action, to which judgment the plaintiff sued out a writ of error and brought the case here, where the judgment was reversed, with directions to the District Court to enter judgment in favor of the plaintiff in the case for the amount named in the verdict, with legal interest from the date of the rendition of the verdict. 148 F. 808-811. Upon the going down of the mandate the judgment here directed was entered by the trial court, and was, of course, final and conclusive as between the parties thereto in respect to the question that was litigated, and in respect to any and every question which might have been raised and determined in this court on the hearing of the former writ of error. Guaranty Co. of North America v. Phoenix Ins. Co of Brooklyn, 124 F. 170, 59 C.C.A. 376; James v Germania Iron Co., 107 F. 617, 46 C.C.A. 476. But, as the only question that was in fact litigated or that could have been raised or determined by this court on the hearing of the former writ of error was the question in respect to the validity of the plaintiff's appointment as administrator of the estate of the deceased Linge, it is plain that that is the only question upon which the judgment of this court on that writ of error had any bearing. As a matter of course the defendant to the suit could not have obtained a writ of error to reverse the first judgment of the District Court, nor could it have assigned any cross-errors thereon for the reason that it was in no way aggrieved thereby; on the contrary, that judgment was wholly in the defendant's favor, for it dismissed the action absolutely. When the judgment to which the present writ of error goes was entered by the court below in pursuance of the mandate of this court issued upon its judgment given on the hearing of the first writ of error the questions now presented for consideration were first opened to the plaintiff in the action.

See Guaranty Co. of North America v. Phoenix Ins. Co. of Brooklyn, supra, where the subject was fully considered by the Circuit Court of Appeals for the Eighth Circuit, and where the conclusions above announced were amplified and sustained by numerous authorities. The plaintiff's intestate was at work sinking the main shaft of the Treadwell mine, and was about 800 feet below the surface. The shaft was perpendicular. Ore was being hoisted through the shaft from the 440 foot level by a skip and hoisting apparatus. The skip was a large iron bucket, and, together with its frame and its usual load, it weighed approximately five tons. It was hoisted by means of a cable to a point 60 feet above the mouth of the shaft, at which point the cable ran over a sheave wheel, and thence to a drum around which it was wound. While the skip with its load was being drawn to the surface the sheave wheel broke, the cable parted, and the loaded skip fell, carrying away two bulkheads below, and killing the plaintiff's intestate. In the complaint three grounds of negligence were alleged: First, the use of an old and weak cable; second, the use of an old, weak, much used and broken sheave wheel; and, third, the omission to provide sufficient bulkheads in the shaft. On the trial there was no proof of negligence as to the first and third of the grounds so alleged. The trial court in charging the jury assumed that a reasonably sufficient bulkhead was constructed, and that a reasonably sufficient cable was provided, and submitted to the jury the question of the negligence of the plaintiff in error in using its sheave wheel.

It is contended that the trial court erred in denying the motion of plaintiff in error to instruct the jury to return a verdict in its favor, and it is urged that there was no evidence to go to the jury to show that the accident resulted from any defect in the sheave wheel, or that there was negligence in its use. Upon a careful consideration of the evidence, we think the contention is not sustained. It was in evidence that a short time before the accident a piece from 12 to 14 inches long had been broken out of one of the flanges of the wheel, and that the wheel had been repaired by placing a piece of iron on the outside thereof below the break, upon which the broken piece was put back and riveted. There was evidence that the wheel was made of cast iron. There was evidence of expert machinists that the wheel should not have been repaired at all, and that its use as repaired was dangerous. There was the testimony of the employe who was sent down to clear out the bottom of the shaft after the accident that he found a piece of the perimeter of the broken wheel about two feet long, with 'a patch on the cast iron piece and a broken spoke. ' Nor was there lack of evidence to show the causal connection between the defect in the wheel and the accident. There was testimony that one end of the break went through the rivet holes which had been made when the wheel was previously patched, and testimony that the second break was 'on account of the patch not being put on in the right way. ' There was testimony to show that, if the perimeter of the wheel were broken, the cable would naturally drop, and would be likely to break. In view of all this testimony, there was no room for the application of the doctrine of Patton v. Texas Pacific Ry. Co., 179 U.S. 658, 21 Sup.Ct. 275, 45 L.Ed. 361, viz., that where it is shown that one or two or more acts caused the accident, for some of which the defendant is, and for some of which it is not, liable, the jury is not permitted to guess between them, and 'find that the negligence of the employer was the real cause, when there is no satisfactory foundation for that conclusion'; for there is in the record testimony as to facts which, if credited, do furnish a reasonable explanation of the accident.

Counsel for plaintiff in error in his motion for an instructed verdict admitted that the breaking of the wheel was 'the primary cause of the accident. ' It was shown that the fracture of the wheel would cause the cable to slip and to drop to the shaft, and that the cable would be likely to break, and it is in evidence that the wheel broke at the point where it had been previously patched, and there was expert evidence that it should not have been used at all after having been broken in the manner indicated in the testimony.

Error is assigned to the admission in evidence of the deposition of Knute Hansen. The deposition had been read to the jury on the former trial of the cause. When it was offered on the second trial, the objection was made that no sufficient foundation was laid for its introduction, in that it was not shown that the witness was over 100 miles away from the place where the court was held. Section 657 of part 4 of the Alaska Code provides that, before such a deposition can be used, 'proof shall be made that the witness did reside beyond the service of a subpoena, or that he still continues absent, or infirm, as the case may be. ' The record shows that, in answer to the objection to the introduction of the deposition, testimony was taken first of the deputy marshal, who testified that three or four days before he made inquiries for Knute Hansen in Juneau, Douglass, and Treadwell for the purpose of serving a subpoena on him, but that he could find no one who knew anything about him, but he admitted that he had not inquired at the mines in the Basin, whereupon the court said, 'I think at least you should show he is not in any place in the vicinity of Juneau,' and directed that the deputy marshal telephone to see if the witness were not in the Basin. Another witness was called who testified that Hansen was not working in the Basin; that he had left the previous summer, and the witness had not seen him since; that he had received a letter from him saying that he went down to Copper Mountain; that he had never seen him around Juneau since, nor heard of his being there; that he could not say whether Copper Mountain was within 100 miles or not. On this showing the court admitted the deposition. We discover no error in that ruling. The court must have had knowledge of the surrounding country and of all the places mentioned by the witnesses, and we must assume that he reached his conclusion on proof sufficient to show that reasonable effort had been made to find the witness, and that he did reside beyond the reach of a subpoena.

The plaintiff in error contends that it was reversible error to admit in evidence certain drawings of the sheave wheel made by witnesses for the defendant in error; that these drawings are not made according to scale, and are so made as to indicate that the wheel was more weakly constructed than it was in fact. The drawings so made did not purport...