Cain v. Gold Mountain Min. Co.
| Decision Date | 27 March 1903 |
| Citation | 71 P. 1004,27 Mont. 529 |
| Parties | CAIN v. GOLD MOUNTAIN MIN. CO. |
| Court | Montana Supreme Court |
Appeal from District Court, Jefferson County; M. H. Parker, Judge.
Action for personal injuries by Thomas Cain against the Gold Mountain Mining Company. From a judgment for plaintiff and from an order denying a new trial, defendant appeals. Affirmed.
E. B Howell, J. B. Roote, and W. A. Clark, Jr., for appellant.
T. J Walsh, for respondent.
The plaintiff, Thomas Cain, was employed as a miner by the defendant, the Gold Mountain Mining Company, in the Ruby mine, in Jefferson county, Mont., working in the stopes getting out ore. The operations of that portion of the mine were reached through a tunnel about 600 feet in length. A track of iron rails was laid in the tunnel, and ordinary tram cars were used to haul out the ore and waste. The tunnel had sufficient grade that the cars ran out by force of gravity and with considerable velocity. On January 19, 1898, the plaintiff left his work in the stopes, went to the mouth of the tunnel, and, in attempting to return to his work, met a loaded car, and was by it crushed against the side of the tunnel and severely injured. He brought this action for damages, alleging negligence on the part of the defendant company in that the tunnel through which he had to go to his work was too narrow to permit a man and car to pass in it. The answer denied any negligence on the part of the defendant; alleged contributory negligence on the part of the plaintiff; that the plaintiff assumed the risks incident to his employment when he went to work for the defendant company; and that the narrowness of the tunnel was apparent to the plaintiff, and constituted a risk which he so assumed. Upon the trial of the cause, after the plaintiff rested, the defendant interposed a motion for a nonsuit, which was overruled, and defendant then offered its testimony. A verdict in favor of the plaintiff for $2,500 was returned and from a judgment entered on that verdict, and from an order overruling defendant's motion for a new trial these appeals are prosecuted.
The only errors relied upon are, first, the insufficiency of the evidence to justify the verdict, and, second, error of the court in refusing to grant defendant's motion for a nonsuit.
1. The specifications of insufficiency of the evidence to justify the verdict are alike, and are wholly inadequate for the purpose intended. In form they are substantially as follows: The evidence is insufficient to support the verdict in this: that the evidence conclusively shows contributory negligence on the part of the plaintiff, knowledge of certain facts on his part, or something to the same effect. Section 1173 of the Code of Civil Procedure, among other things, provides: Under a specification of the insufficiency of the evidence to support the verdict, this court will not consider what the evidence does show, but only what it fails to show (Bank v. Roberts, 9 Mont. 323, 23 P. 718; Zickler v. Deegan, 16 Mont. 198, 40 P. 410; Bardwell v. Anderson, 18 Mont. 528, 46 P. 443; Kumle v. Grand Lodge [Cal.] 42 P. 634; Dawson v. Schloss, 93 Cal. 197, 29 P. 31), and, the specifications having wholly failed to point out any particulars in which the evidence is insufficient to support the verdict, we are bound by the terms of section 1173, above, to disregard them on this hearing.
2. Did the district court err in overruling defendant's motion for a nonsuit? The respondent contends that this question is not before this court, and that the error, if error at all was waived by the defendant when it proceeded to put in its evidence after the motion had been...
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