Bingham Mines Co. v. Bianco

• Decision Date: 18 October 1921
• Docket Number: 5644.
• Citation: 276 F. 513
• Parties: BINGHAM MINES CO. v. BIANCO.
• Court: U.S. Court of Appeals — Eighth Circuit

276 F. 513

BINGHAM MINES CO. v. BIANCO.

No. 5644.

United States Court of Appeals, Eighth Circuit.

October 18, 1921

Mahlon E. Wilson, of Salt Lake City, Utah, for plaintiff in error.

Culbert L. Olson, of Salt Lake City, Utah, for defendant in error.

Before CARLAND, Circuit Judge, and LEWIS and YOUMANS, District Judges.

YOUMANS District Judge.

Defendant in error, hereafter called plaintiff, as administrator of the estate of James Ozzello, deceased, brought suit against plaintiff in error, hereafter called defendant, for damages for the death of James Ozzello, alleged to have been caused by the negligence of defendant. Plaintiff recovered judgment for the benefit of the widow and two minor children of Ozzello. Defendant brings error to reverse that judgment.

On or about October 13, 1914, James Ozzello was employed by defendant in the underground workings of its mine. At the time of the injury which resulted in his death, Ozzello was engaged in loading ore cars with ore and waste at an ore chute known as chute No. 9 in a certain drift of defendant's mine.

The ore cars were moved into and out of the drift by means of an electric motor. The electric power for it was furnished through a trolley wire that was extended into the drift.

Plaintiff alleged and introduced proof tending to show that this wire was extended at a height of five feet and two inches above the floor level of the drift at the place where Ozzello was working. The motor was operated by a motorman who controlled the electric power used to propel the motor. The ore cars were moved by the motor into the drift near No. 9 chute and left there to be loaded with ore and waste. When the cars were so placed, the motor was disconnected therefrom and moved to another part of the mine. It was the duty of Ozzello to load the cars with ore or waste and to couple them up when so loaded.

Ozzello had been engaged in this work for six months. The wire was bare and unguarded. No one was present at the time the injury was sustained.

James Airole testified as follows:

'I had worked in No. 9 stope 13 or 14 months before the accident. The cars were hauled in and out of the mine with a motor. The motor had a trolley pole and the pole ran along the wire; it tipped to the wire side. The mucker loaded the cars at chute No. 9. Jim Ozzello was doing that on the date of the accident. He went into work after 7 in the morning. He went with me up the manway into the stope 150 feet above the drift and worked there all day. When I came off shift, I came down this manway. On other occasions before the accident, I had seen Jim Ozzello loading cars at the chute. He would raise the board and let the ore come out of the chute, and stand by the chute, and when the car was loaded, he would push it ahead. He sometimes loaded six, sometimes seven, sometimes ten, sometimes four cars. The empty cars would be standing near the manway. He would push the loaded car ahead, then go and get an empty car and load it with ore and push it up, and I don't know how he got to couple them up. After they were all loaded, the motor would come in and take them out. On the date of the accident, in the afternoon, we quit work about half past 3 and changed our clothes up there. My partner was Jim Procarione. We came down about 20 minutes to 4. The chute and manway are divided by partitions. We came down the manway. We brought buckets, a saw, and an ax, and put them on the skip and ran the skip from the top up there and down the manway. The buckets, saw, and ax were ahead of us, and we came down on the right side of the manway or the middle. When I came down the manway, I saw James Ozzello. He was pushing an empty car under the chute. I was then about 10 feet up the manway. I said to him: 'How many cars have you got to load, Jim?' And he said: 'This is the last one.' I was then 10 feet up the manway. * * * The motor was not there at that time. It came in about 10 minutes later. We talked until the motor came in, and asked: 'Where did Jim go?' We were standing to the right of the manway, some little distance. My partner asked: 'Where Jim go?' The motorman connected onto the train, and pulled the cars out. We stayed there a minute or two, right on the track. The cars stopped, the last car being about 15 or 20 feet from the ore chute. I do not know exactly. We stopped behind the car, two or three feet. We saw Jim Ozello dead on the side, on the left-hand side going out. Ozzello's arm was over the track, and a wheel of the car was on top of his arm. The body was lying on the belly, with head turned to the left side of the drift, with the right side of his face down, the left hand lying along the left side, and the right arm extending over the track at about the elbow; the body being directly under the trolley wire on the left-hand side of the drift looking out, or where the trolley wire would come. The hind wheel of the car was on his arm at about the elbow; the hind wheel was off the track between the rails on the ground. Ozzello was dead. * * * I had worked around No. 9 chute about two years. Ozzello had been there about six or seven months, maybe more. He had been there four or five or six months, almost every day. * * *

'The place where we found the body of Ozzello was 15 or 20 feet from the ore chute; went to work in the drift above the manway about 7:30 and worked there until along in the afternoon, and then started to come down, about 20 minutes to 4. We quit at half past 3 and then started down. I did not look at my watch any more. When we got down it was about 15 minutes to 4. I was in the manway when I saw Ozello about 10 feet above the drift. He was pushing the car under the chute and that was when he said: 'This is the last car I have got to load.' There was no car under the chute at that time. He was right behind the empty car pushing it up under the chute. I saw him quit pushing it. I was then coming down the manway. I didn't see where he went. He put the car under the chute, and the last time I saw him, before I saw him dead, he was standing behind the car. * * * I had a lamp with me; Jim Ozzello had his lamp. Ozzello had to pass the car on the left-hand side of the drift going out. I did not see him go down on either side. I did not see him after he left the car. Nobody can pass on the right-hand side of the car, going down the drift. I saw the trolley wire there. I did not see it when I was in the manway looking at him. I saw it when I got down. I knew it was there; had seen it in the morning and saw it every day. If a man would raise his lamp, he could see it. When a man has his lamp lit, he has got to look where he puts his feet, but if he raised his lamp he could see it.'

The facts stated by Airole were corroborated by other witnesses.

Bert Sorossi, shift boss, testified for the defendant as follows:

'I knew James Ozzello. I was present at the time his body was found on the track. He had been working there about nine months in and about No. 9 chute; been working about six months; he had been working about nine months steadily off and on. He worked six months under the other shift boss, and three months under the witness shift boss. I had known him a little over nine months. I went in when I heard he was killed; saw his dead body lying on the ground. It was about 15 feet below No. 9 chute. * * * I had some talk with him a few days before the accident. I see he had a pick and shovel. He was going up there in the stope. I said to him: 'Better look out, Jim, the wire is charged there.' He said to me: 'Yes, I look for that."

The complaint alleges that defendant was negligent in the following particulars:

'(a) That the defendant carelessly and negligently maintained said trolley wire in said drift at an insufficient elevation, to wit, at a height of about five feet and two inches above the floor level of the drift at such points in the drift and about the ore chute where the deceased was performing his work that the deceased was thereby unnecessarily and carelessly exposed to the danger of contact with said wire.

'(b) That the defendant carelessly and negligently failed and neglected to protect said trolley wire from being exposed to contact with the deceased and other workmen similarly employed by it.

'(c) That the defendant carelessly and negligently caused and permitted said trolley wire to carry an unnecessarily high and dangerous voltage of electric pressure, to wit, 500 volts.

'(d) That the defendant carelessly and negligently caused and permitted said trolley wire to be charged with electricity while the deceased was engaged in the performance of his work.

'(e) That the defendant carelessly and negligently failed and neglected to adopt and enforce any measure, or promulgate and enforce any rule or regulation, to prevent or prohibit its motorman or other person intrusted by the defendant with the operation of electric switches and the control of electric power in its said mine, from causing said trolley wire to be charged with said electric power while the deceased was engaged in the performance of his work.'

The answer denied the allegations of negligence. In addition, the affirmative defenses were set up of (a) contributory negligence (b) assumption of risk, and (c) injury by a fellow servant.

At the conclusion of the testimony defendant moved the court to instruct the jury to return a verdict in its favor on the following grounds:

(1) The failure of the evidence to show that plaintiff had the consent of the wife and children to bring the suit.

(2) The failure of the evidence to show negligence.

(3) The failure of the evidence to show the death was caused by electricity.

(4) That the testimony showed that Ozzello assumed the risk of coming in contact with...