Chiara v. Stewart Min. Co.

• Decision Date: 05 September 1913
• Citation: 24 Idaho 473,135 P. 245
• Parties: CATTERINA CHIARA et al., Respondents, v. STEWART MINING CO., Appellant
• Court: Idaho Supreme Court

135 P. 245

24 Idaho 473

CATTERINA CHIARA et al., Respondents, v. STEWART MINING CO., Appellant

Supreme Court of Idaho

September 5, 1913

NEGLIGENCE-DAMAGE FOR WRONGFUL DEATH-SUFFICIENCY OF EVIDENCE-1909 EMPLOYERS' LIABILITY LAW-1909 EMPLOYERS' LIABILITY ACT CUMULATIVE AND NOT REPEALING IN EFFECT.

1. Where a laborer working in a mine as loader and dumper on ore cars was accustomed to ride from the place of dumping the ore and waste back to the mouth of the tunnel on the bumper of the back car, and it is shown that such place was unsafe for anyone to ride and that the laborer, after working a few days at this work, either fell off or was thrown from the bumper and run over and crushed by the car, and it appears that the master had not furnished the workman with any other place that was more safe for him to ride or do his work, and that the master had been accustomed to allow other loaders to ride at this same place, held, that under the facts of this case the master is guilty of negligence and liable in damages for the death of the servant, and that the servant was not guilty of such contributory negligence as will defeat a recovery.

2. Held, that house bill No. 26, enacted by the 1909 session of the legislature, which act relates to the liability of employers and masters, did not repeal sec. 4100 of the Rev Codes, which authorizes the prosecution of an action by the heirs or personal representatives of one whose death is caused by the wrongful act or neglect of another.

3. Held, further, that the act of March 6, 1909 (1909 Sess Laws, p. 34), was intended to extend the rights of employees and limit the defenses of employers in cases of personal injury.

4. Act of March 6, 1909, known as the employers' liability act is not in conflict with and does not repeal pre-existing statutes conferring the right of action for a death claim and does not prevent the prosecution of an action under sec. 4100 of the Rev. Codes.

APPEAL from the District Court of the First Judicial District for Shoshone County. Hon. W. W. Woods, Judge.

Action for damages for the wrongful death of the plaintiffs' intestate. Judgment for plaintiffs. Defendant appealed. Affirmed.

New trial granted. Judgment affirmed. Costs awarded to respondent. Petition for rehearing denied.

E. J. Cannon, G. M. Ferris, W. E. Cullen, and Feather stone & Fox, for Appellant.

There is not a word of testimony in this record from which the jury could legitimately find what caused the deceased to fall from the car. All that the respondent proved was that the deceased was last seen upon the car and later found dead under it. This is not sufficient to support a verdict. (Powers v. Pere Marquette Ry., 143 Mich. 379, 106 N.W. 1117; Pittsburgh Coal Co. v. Myers, 203 F. 221; Patton v. Texas etc. Ry., 179 U.S. 658, 21 S.Ct. 275, 45 L.Ed. 361; Stratton v. Nichols Lbr. Co., 39 Wash. 323, 109 Am. St. 881, 81 P. 831; Hamann v. Milwaukee Bridge Co., 127 Wis. 550, 106 N.W. 1083, 7 Ann. Cas. 458; Peppett v. Mich. Ry., 119 Mich. 640, 78 N.W. 900; Clare v. New York etc. Ry., 167 Mass. 39, 44 N.E. 1054; Redmond v. Delta Co., 96 Mich. 545, 55 N.W. 1004; Tyndale v. Old Colony Ry., 156 Mass. 503, 31 N.E. 655; Hansen v. Seattle Lumber Co., 31 Wash. 608, 72 P. 457; Reidhead v. Skagit Co., 33 Wash. 174, 73 P. 1118; Chicago Ry. v. Kellogg, 55 Neb. 748, 76 N.W. 462; Armstrong v. Town of Cosmopolis, 32 Wash. 110, 72 P. 1038; Chicago & N.W. Ry. v. O'Brien, 132 F. 596, 67 C. C. A. 421; 3 Elliott on Railroads, sec. 1299; 29 Cyc. 631.)

The deceased in voluntarily assuming the dangerous position of riding upon the bumper was guilty of contributory negligence as a matter of law, which precludes any recovery in this case. (Haynes v. Ft. Dodge etc. Ry., 118 Iowa 393, 92 N.W. 57; Baltimore Ry. v. Jones, 95 U.S. 439, 24 L.Ed. 506; Kresanowski v. Northern P. Ry., 18 F. 229, 5 McCrary, 528; Gilbert v. Burlington Ry., 128 F. 529, 63 C. C. A. 27; Glover v. Scotten, 82 Mich. 369, 46 N.W. 936; Warden v. Louisville Ry., 94 Ala. 277, 10 So. 276, 14 L. R. A. 552; Tower Lumber Co. v. Brandvold, 141 F. 919, 73 C. C. A. 153; Bailey on Personal Injuries, sec. 1453.)

The danger of riding upon the bumper of the car was open and obvious, and one which must be readily appreciated by a person of ordinary intelligence. The deceased was in the possession of all his faculties and was a man of many years' experience in mine work. He had been warned of the danger. Under this state of facts he assumed the risk of riding the bumper as a matter of law. (Smith v. Potlatch Lumber Co., 22 Idaho 782, 128 P. 546; Knauf v. Dover Lumber Co., 20 Idaho 773, 120 P. 157; Rippetoe v. Feely, 20 Idaho 619, 119 P. 465; Butler v. Frazee, 211 U.S. 459, 29 S.Ct. 136, 53 L.Ed. 281; Goure v. Storey, 17 Idaho 352, 105 P. 794.)

The fact that the deceased selected a dangerous method of performing a work when there were several safe methods at hand precludes a recovery. (Rippetoe v. Feeley, supra; Stratton v. Nichols, supra; Hoffman v. American Co., 18 Wash. 287, 51 P. 387; Gilbert v. Burlington Ry., 128 F. 534, 63 C. C. A. 27; Morris v. Duluth Ry., 108 F. 749, 47 C. C. A. 661; Illinois Cent. Ry. v. Swift, 213 Ill. 307, 72 N.E. 740; Bundy v. Union Iron Works, 46 Wash. 231, 89 P. 546; Chicago Ry. v. Davis, 53 F. 63, 3 C. C. A. 429; Beltz v. American Co., 37 Wash. 399, 79 P. 981; Kennedy v. Merrimack Co., 185 Mass. 442, 70 N.E. 437.)

The act of 1909 by its plain terms repeals sec. 4100, and in failing to plead and prove that they had complied with the law of 1909, the respondents were not entitled to have their case submitted to the jury. An act such as the one here in question by its terms repeals any and all acts or parts of acts in conflict therewith, whether the act so provides or not. (Nelden v. Clark, 20 Utah 382, 77 Am. St. 917, 59 P. 524; Nicol v. City of St. Paul, 80 Minn. 415, 83 N.W. 375; Fisk v. Henarie, 142 U.S. 459, 12 S.Ct. 207, 35 L.Ed. 1083; State ex rel. Adair v. Drexel, 74 Neb. 776, 105 N.W. 174; Mack v. Jastro, 126 Cal. 130, 58 P. 372.)

John P. Gray and Therrett Towles, for Respondents.

The evidence not only was sufficient to show that the injury was caused because of the defective car, but was so full as to practically preclude any other reasonable conclusion. The respondents maintain that under all the testimony there was presented a pure question of fact for the jury. No eyewitness was standing where he saw the exact manner in which the accident occurred, but the circumstances of the case are clear, convincing and satisfactory. (Calkins v. Blackwell Lumber Co., 23 Idaho 128, 129 P. 435; Adams v. Bunker Hill etc. Co., 12 Idaho 643, 89 P. 624, 11 L. R. A., N. S., 844; Rosellini v. Salsich Lumber Co. , 71 Wash. 208, 128 P. 213; Missouri K. & T. Ry. Co. of Texas v. Blackman, 32 Tex. Civ. App. 200, 74 S.W. 74; Vanyi v. Portland Flouring Mills Co. (Or.), 128 P. 830; Union Stockyards Co. v. Conoyer, 41 Neb. 617, 59 N.W. 950; Brownfield v. Chicago, R. I. & P. Ry. Co., 107 Iowa 254, 77 N.W. 1038; Cameron v. Great Northern Ry. Co., 8 N.D. 124, 77 N.W. 1016; Union Stockyards Co. v. Goodwin, 57 Neb. 138, 77 N.W. 357; Hughes v. Louisville & N. R. Co., 104 Ky. 774, 48 S.W. 671; Ft. Worth & R. G. Ry. Co. v. Kime, 94 Tex. 649, 54 S.W. 240.)

It is assumed in appellant's brief that the deceased had been repeatedly warned not to ride upon the waste car. That was a question for the jury. He is presumed, under the rule adopted by this court, to have been in the exercise of due care. (Adams v. Bunker Hill etc. Co., supra; Fleenor v. Oregon S. L. R. Co., 16 Idaho 791, 102 P. 897.)

It was clearly proven by the evidence in this case that the defective condition of the car was the cause of death, and under the decision of this court in Maloney v. Winston Bros. Co., 18 Idaho 740, 111 P. 1080, and Walsh v. Winston Bros. Co., 18 Idaho 768, 111 P. 1090, the deceased did not assume the risk of the master's negligence in the particulars complained of. The Idaho employers' liability act is copied from the Massachusetts act, as is also the Colorado employers' liability act, and the Massachusetts act was taken from the English statute. The question of whether such an act was cumulative or exclusive in a death case has been decided in Colorado first by the court of appeals in Mitchell v. Colo. Milling & Elevator Co., 12 Colo. App. 277, 55 P. 736, and by the supreme court of Colorado in the same case--Colo. Mill etc. Co. v. Mitchell, found at 26 Colo. 284, 58 P. 28. (See, also, Statts v. Twohy Bros. Co., 61 Ore. 602, 123 P. 909; Bussey v. Gulf & S. I. R. Co., 79 Miss. 597, 31 So. 212; Dennis v. Atlantic Coast Line R. R., 70 S.C. 254, 106 Am. St. 746, 49 S.E. 869; 1 Lewis' Sutherland Stat. Const., par. 256, p. 491; Denver & R. G. Co. v. Norgate, 141 F. 247, 72 C. C. A. 365, 6 L. R. A., N. S., 981, 5 Ann. Cas. 448; Colorado M. & E. Co. v. Mitchell, 26 Colo. 284, 58 P. 28; 5 Labatt, Master & Servant, 2d ed., p. 5279; Ryalls v. Mechanics' Mills, 150 Mass. 190, 22 N.E. 766, 5 L. R. A. 667; Barber Asphalt Paving Co. v. Austin, 186 F. 443, 108 C. C. A. 365.)

AILSHIE, C. J. Sullivan and Stewart, JJ., concur.

OPINION

AILSHIE, C. J.

This action was instituted to recover damages for wrongfully causing the death of a laborer who was engaged in loading and unloading ore and waste cars in appellant's mine. The verdict is assailed on the charge that the evidence wholly fails to show negligence on the part of the mining company or the means by which the deceased met his death.

It is evident to us that the bumper projecting only three inches on the back end of an ore car is not a safe place for anyone to ride. Whether or not the deceased was warned, as claimed by appellant, against riding at that place, it remains a fact, nevertheless, that he was permitted to ride there...