Calumet & Arizona Mining Co. v. Winters

• Decision Date: 26 October 1923
• Docket Number: Civil 1920
• Citation: 25 Ariz. 483,219 P. 585
• Parties: CALUMET AND ARIZONA MINING COMPANY, a Corporation, Appellant, v. J. L. WINTERS, Administrator of the Estate of LEWIS B. NAYLOR, Deceased, Appellee
• Court: Arizona Supreme Court

219 P. 585

25 Ariz. 483

CALUMET AND ARIZONA MINING COMPANY, a Corporation, Appellant, v. J. L. WINTERS, Administrator of the Estate of LEWIS B. NAYLOR, Deceased, Appellee

Civil No. 1920

Supreme Court of Arizona

October 26, 1923

ON REHEARING.

On rehearing of appeal from a judgment of the Superior Court of the County of Cochise. A. G. McAlister, Judge. Affirmed.

For former opinion, see 24 Ariz. 333, 209 P. 298.

Mr Cleon T. Knapp and Messrs. Boyle & Pickett, for Appellant.

Mr Alexander Murry and Mr. Frank E. Thomas, for Appellee.

OPINION

ROSS, J.

Action under the Employers' Liability Law (Civ. Code 1913 §§ 3153-3179). Lewis B. Naylor, while in the employment of the defendant mining company as an electrician and working in and about defendant's electrical plant, used in connection with its mining operations, on May 14, 1918, was electrocuted. Upon the issues formed by the pleadings, a trial before a jury was had, and a verdict returned for plaintiff.

The only question presented on appeal is whether the plaintiff has sustained the burden of proof, which, under the law, is his duty. There is no dispute as to the facts shown by the evidence, the divergence being as to their effect; it being contended by the defendant that they do not establish by a preponderance of the evidence, that the accident was not caused by the deceased's negligence.

The only witness that testified to the circumstances of Naylor's death, and how it occurred, was William R. Gibson, chief electrician for defendant. The substance of this witness' testimony is that, at about 9:30 o'clock in the evening he was installing a switchboard in the compressor or switchboard room of the Junction Shaft Mine belonging to the defendant; that he had as assistants "two, four, probably six to ten, electricians working around, and had helpers for first one thing and another." At the time, one switchboard had been installed and was in operation, and the present work was directed toward installing a second one. Every electrical conductor in the room was insulated except a fuse terminal about one inch long on the live switchboard. This switch and the uninsulated fuse plug were attached to upright boards and were about seven feet from the floor of the room; they were on the opposite side of the upright boards, from where Naylor was, boxed in so that one to reach the fuse plug from Naylor's position would have to reach up and around the panel of upright boards and down about one inch.

Naylor was sitting upon a board about three feet high and from twenty to twenty-four inches away from the upright boards holding the live switch, with his back toward such live switch. Standing in front of Naylor was Gibson, his head a little lower than Naylor's, and within about fourteen inches of Naylor's head. They were facing each other, and were handling an insulated piece of wire about fourteen inches long, which was being bent into shape, under Gibson's direction, for use in installing the other switchboard. Gibson says: "As I was bending the wire, there was a crash and a flash and it blinded me for a moment, and another flash. Of course this flash was caused from electricity; he had dropped the wire, and I reached for it, and my arm was lying across his leg." When asked the question, "Do you know whether Naylor dropped the wire, or do you simply infer he dropped it from what happened?" he answered, "That is not exactly clear to me. It seems to me he dropped it because I held the wire, and, of course when he was dead he dropped it, and he might have dropped it a second or two before." Witness further said that Naylor met his death from electricity, and the only way it coud possibly have happened would have been to guide his hand and touch something that was not insulated. Then followed these questions and answers:

"Q. Do you know whether Mr. Naylor touched anything at the time of his death? A. No; I do not know it.

"Q. Did you see his hand touch anything at the time of this flash or crash? A. No.

"Q. Did you see either one of his hands in back of the switchboard prior to the explosion? A. No.

"Q. Then you didn't see him make any attempted motion with his hands immediately before the explosion? A. I did not; no."

Witness said it was possible, but not convenient, for Naylor in his position to touch fuse terminal by "turning partly around and lifting his arm back this way up behind this board and then down."

Just after the accident Gibson "looked things over and tried to imagine how he could have done it." And some time after he went back and looked at the machinery, and observed a wire burned off and the boards surrounding fuse plug blackened on the inside.

There was a slight burn on Naylor's left hand and arm that the attending physician said could have been caused by something else than electricity. Deceased was an experienced electrician, had worked for defendant, under Gibson, for three or four months, and assisted in the installation of the live switchboard. The voltage of the live switch was 2,200. Four of the employees were knocked down; and Gibson was stunned for thirty or forty seconds at the instant Naylor was electrocuted.

The defendant, in its opening brief, after stating the facts as viewed from its standpoint, and practically as I have stated them, says:

"Thus the only evidence in this case as to what transpired at the time of the accident fails to show how Naylor [deceased] was killed. There is absolutely no testimony that he was not killed by his own negligence."

While this court has held the plaintiff must not only allege but prove, under the Employers' Liability Law, that injury or death was caused by an accident due to condition or conditions of the occupation, and that it was not caused by the negligence of the killed or injured employee (Calumet & Arizona Mining Co. v. Chambers, 20 Ariz. 54, 176 P. 839; Southwest Cotton Co. v. Ryan, 22 Ariz. 520, 199 P. 124), we have not had occasion to discuss or define what will satisfy that burden. From the language of the statute giving the right of action, it was doubtless intended that the onus of showing that he did not, by his negligence, cause his injury or death, should be placed on the employee, or, in case of death, his personal representative or dependent, in the same way and by the same rules and means employed in cases of like character. It should be remembered that the act creates a liability without fault, and is in that respect like the different Workmen's Compensation Laws.

The decision of the United States Supreme Court in Arizona Copper Co. v. Hammer, 250 U.S. 400, 63 L.Ed. 1058, 6 A.L.R. 1537, 39 S.Ct. 553, sustaining our Employers' Liability Law as constitutional, is based upon the reasoning employed by that court in upholding the Workmen's Compensation Laws of New York (Laws 1913, c. 816, re-enacted and amended by Laws 1914, cc. 41, 316), Iowa (Acts 35th Gen. Assem. c. 47), Washington (Laws 1911, p. 345), and Texas (Laws 1913, c. 179 [Vernon's Sayles' Ann. Civ. Stats. 1914, arts. 5246h-5246zzzz]). New York C.R. Co. v. White, 243 U.S. 188, Ann. Cas. 1917D, 629, 61 L.Ed. 667, L.R.A. 1917D, 1, 37 S.Ct. 247 (see, also, Rose's U.S. Notes); Hawkins v. Bleakly, 243 U.S. 210, Ann. Cas. 1917D, 637, 61 L.Ed. 678, 37 S.Ct. 255; Mountain Timber Co. v. Washington, 243 U.S. 219, Ann. Cas. 1917D, 642, 61 L.Ed. 685, 37 S.Ct. 260; Middleton v. Texas Power & Light Co., 249 U.S. 152, 63 L.Ed. 527, 39 S.Ct. 227.

Our liability law differs from the compensation laws, principally in that the compensation is assessed by a jury or the court, whereas, under the Workmen's Compensation Laws, the compensation is assessed, according to fixed and definite rules, by a commission or some other body, after investigation and hearing. The Arizona Copper v. Hammer case, supra, is classified and treated by the editors of the American Law Reports (v0l. 6, 1537, note 1562) as coming under the compensation laws. In many jurisdictions the workmen's compensation statute places the burden pon the plaintiff to show that the accident causing he injury arose out of and in the course of the employment. The decisions of the courts, where this question as arisen, and the evidence is silent as to how the accident happened or the injury occurred, ought to be persuasive in the decision of this case, it would seem.

In view of the purpose of our Employer's Liability Law, and believing, as we do, that the decisions concerning the rights of the employee to recover under Compensation Acts should be very persuasive, we shall be guided, in coming to conclusions, by the rule announced by the Utah court in Chandler v. Industrial Commission of Utah, 55 Utah 213, 8 A.L.R. 930, Commission of Utah, 55 Utah 213, 8 A.L.R. 930,

"We are all united upon the proposition that, in view of the purposes of such acts [Compensation], in case there is any doubt respecting the right to compensation, such doubt should be resolved in favor of the employee or of his dependents as the case may be."

It is obvious that the injury or death, under the statute, must have been caused by an accident due to a condition or conditions of the occupation to entitle a recovery. An injury not caused by an accident, conditioned as above, is not compensable. If it was caused by design or the negligence of the deceased it would not be accidental. Recovery cannot be had for all personal injuries under the Employers' Liability Law, but only for accidental injuries that are due to a condition or conditions of the occupation.

The New Jersey Compensation Act (P.L. 1911, p. 134, as amended by P.L. 1913, p. 302), which is the same as the British Compensation Act, provides for compensation to the workman injured "by accident arising out of and in the course of his...