Cnkovch v. Success Mining Company

• Decision Date: 06 July 1917
• Parties: LOUIS CNKOVCH, Respondent, v. SUCCESS MINING COMPANY, a Corporation, Appellant
• Court: Idaho Supreme Court

166 P. 567

30 Idaho 623

LOUIS CNKOVCH, Respondent, v. SUCCESS MINING COMPANY, a Corporation, Appellant

Supreme Court of Idaho

July 6, 1917

MASTER AND SERVANT-INJURIES TO SERVANT-SAFE PLACE TO WORK-INSTRUCTIONS-TRIAL-EXPERIENCE AND KNOWLEDGE OF JUROR-ASSUMPTION OF RISK - CONTRIBUTORY NEGLIGENCE - MORTALITY TABLES-EXCESSIVE DAMAGES.

1. Instructions permitting the jury to use their own experience and knowledge examined, and held not to violate the rule that juries cannot take into consideration facts not shown in evidence.

2. Mortality tables are merely an aid to the jury in determining life expectancy and are not conclusive.

3. Where the jury is fully instructed on the question of assumption of risk, the fact that other instructions advise the jury that contributory negligence will be a bar to recovery but fail to state that assumption of risk will also be a bar, is not prejudicial.

4. The jury was instructed that "an employee has a right to assume, in the absence of apparent defects, that a place in which he is ordered to work by a shift boss is safe, and he is not bound to inspect it for the purpose of discovering a latent defect. And where an employee is directed to work in a certain place, he has the right, in the absence of proof to the contrary, to assume that the place has been made reasonably safe by his employer." Held, that this instruction does not mean that proof would have to be made by the employer that the employee's place of work was safe irrespective of the employee's knowledge of the dangers or defects thereof, but that it merely states the general rule that the employee has a right to act on the presumption that the employer has made his place of work reasonably safe.

5. Where, in an action by a miner injured by falling rock plaintiff did not plead any assurance of safety by his employer, but defendant pleaded that plaintiff was thoroughly familiar with his place of work and with every danger, risk and hazard there present, it was not error to permit plaintiff to testify that defendant's shift boss told him that the ground above him was all right.

6. Where a miner, working under the directions of a shift boss is charged with the duty of picking down and removing all dangerous ground around his place of work and he has no means or opportunity to examine any other portion of the stope in which he is working beyond or above his immediate vicinity he has a right to assume that his employer has inspected or examined that portion of the place not obvious or known to the servant and found it in a reasonably safe condition.

7. Where, in an action by a servant for personal injuries, the evidence was conflicting as to whether the rock which struck plaintiff came from the block of ore where plaintiff was working, in which case defendant would not be liable, or came from another portion of the stope, and the jury found for the plaintiff, the verdict will not be disturbed.

8. Plaintiff, an experienced miner, thirty-one years old, earning three and a half dollars a day, suffered injuries consisting of a hernia of the direct variety, injury to the pubic region and injury to the sacro-iliac joint. The sacro-iliac injury was severe and of a permanent nature, preventing any labor requiring exercise. Held, that a verdict for $7,500 was not excessive.

[As to duties of mine owners to prevent injuries to employees, see note in 87 Am.St. 557]

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

Action for damages for personal injury. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

J. E. Gyde, for Appellant.

"An instruction which leaves the jury free to consider facts not proved by the evidence, but of which they have been informed in some other way, or which tells the jury that to determine a fact they must look to the evidence as far as it is clear and unambiguous, is erroneous." (38 Cyc. 1683, 1684; 1 Blashfield's Instructions to Jurors, sec. 79; Holt v. Spokane etc. Ry. Co., 3 Idaho 703, 35 P. 39; Whitney v. Woodmansee, 15 Idaho 735, 99 P. 968; Burrows v. Delta T. Co., 106 Mich. 582, 64 N.W. 501, 29 L. R. A. 468; Close v. Samm, 27 Iowa 503; Douglass v. Trask, 77 Me. 35.)

The result of the giving of respondent's requested instruction No. 7 was to absolutely remove from the consideration of the jury the defense of assumption of risk. (Miller v. White Bronze Monument Co., 141 Iowa 701, 18 Ann. Cas. 957, 118 N.W. 518; Chicago etc. R. Co. v. Heerey, 203 Ill. 492, 68 N.E. 74; Johnson v. Mammoth Vein Coal Co. , 88 Ark. 243, 114 S.W. 722, 123 S.W. 1180, 19 L. R. A., N. S., 646; Schlemmer v. Buffalo R. & P. R. Co., 220 U.S. 590, 596, 31 S.Ct. 561, 55 L.Ed. 596; Tuttle v. M. Ry., 122 U.S. 189.)

An instruction which concludes with a direction to find in a certain way must include every element necessary to such finding, and cannot be cured by any other instruction. (1 Blashfield's Instructions to Juries, secs. 78, 80, pp. 170, 176, 177; Just v. Idaho Canal etc. Co., Ltd., 16 Idaho 639, 133 Am. St. 140, 102 P. 381; Portneuf-Marsh etc. Co. v. Portneuf Irr. Co., 19 Idaho 483, 114 P. 19; Giffen v. City of Lewiston, 6 Idaho 231, 55 P. 545; Holt v. Spokane etc. Ry. Co., 3 Idaho 703, 35 P. 39; State v. Webb, 6 Idaho 428, 55 P. 892.)

The court seriously erred in its refusal to tell the jury that no assurance of safety was in issue or complained of by plaintiff in his complaint and that no liability could be predicated thereon. (Thurman v. Pittsburg & M. Copper Co., 41 Mont. 141, 108 P. 588, 590; Minty v. Union P. Ry. Co., 2 Idaho (471) 437, 21 P. 660; Telle v. Leavenworth R. T. Ry. Co., 50 Kan. 455, 31 P. 1076; Cincinnati, I., St. L. & C. Ry. Co. v. McLain, 148 Ind. 188, 44 N.E. 306; Antler v. Cox, 27 Idaho 517, 149 P. 731; Woodward v. Oregon Ry. & Nav. Co., 18 Ore. 289, 22 P. 1076.)

John P. Gray and Walter H. Hanson, for Respondent.

The jury may use their experience in life and knowledge as to the matters referred, first, in determining whether or not the defendant acted as a reasonably prudent person would, and, second, in estimating the loss of earning capacity and fixing his damages. (Grand Trunk R. Co. v. Ives, 144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485; Baillie v. City of Wallace, 24 Idaho 706, 135 P. 850; Maloney v. Winston Bros. Co., 18 Idaho 740, 111 P. 1080, 47 L. R. A., N. S., 634; Walsh v. Winston Bros. Co., 18 Idaho 768, 111 P. 1090; Barter v. Stewart Min. Co., 24 Idaho 540, 135 P. 68; Chiara v. Stewart Min. Co., 24 Idaho 473, 135 P. 245; Denbeigh v. Oregon-Washington etc. R. Co., 23 Idaho 663, 132 P. 112.)

No court has ever held that it is error for the court to instruct the jury to make use of their experience and general knowledge in their deliberations. (1 Brickwood's Sackett on Instructions, sec. 937; Reed v. Territory, 1 Okla. Cr. 481, 129 Am. St. 861, 98 P. 583; Willis v. Lance, 28 Ore. 371, 43 P. 384, 487; Johnson v. Hillstrom, 37 Minn. 122, 33 N.W. 547; Sanford v. Gates, 38 Kan. 405, 16 P. 807; Jenney Electric Co. v. Branham, 145 Ind. 314, 41 N.E. 448, 33 L. R. A. 395; Neanow v. Uttech, 46 Wis. 581, 1 N.W. 221.)

The instructions must all be taken and considered together, and if they, as a whole, state the law applicable to the facts in the case, that is sufficient, and the case should not be reversed. (Barrow v. B. R. Lewis Lbr. Co., 14 Idaho 698, 711, 95 P. 682.)

The negligence charged was in not keeping the place reasonably safe and in not having the loose rock so removed that it would not fall on him. (Lone Star Lignite Min. Co. v. Caddell (Tex. Civ.), 134 S.W. 841.)

"The danger from which he was injured was not one of the ordinary risks of his employment." (Bunker Hill & Sullivan Min. & C. Co. v. Jones, 130 F. 813, 65 C. C. A. 363; Maloney v. Winston Bros. Co., 18 Idaho 740, 111 P. 1080, 47 L. R. A., N. S., 634.)

It is the absolute duty of the master to provide a reasonably safe place in which the servant shall work, having regard to the kind of work, and the conditions under which it must necessarily be performed. (Bunker Hill & Sullivan Min. & C. Co. v. Jones, supra.)

FLYNN, District Judge. Budge, C. J., and Rice, J., concur.

OPINION

FLYNN, District Judge.

Respondent obtained judgment against appellant for personal injuries, from which judgment and from an order overruling a motion for a new trial this appeal is taken.

While operating a machine drill in appellant's mine, respondent was struck by falling rock, which, he claimed, came from straight above him and which appellant contended must have come from the block of ore on which he was working. The complaint alleges that respondent was working under the supervision and direction of a shift boss; that it was his duty to perform such work at such place and in such manner as the shift boss directed, and that it was one of the duties of the shift boss to cause such work to be done and timbering to be put in as was necessary to keep and maintain the place where the employees of the appellant were required to work reasonably safe. It is alleged that the stope where respondent was working was a large stope extending upward and there were no lights therein except respondent's miner's lamp, and no other man was working there to his knowledge; that respondent was unable to tell how far the stope extended upward, and that while he was working therein and deeply engrossed in his work, without any notice or warning, rocks came down from above and struck and injured him. He alleges that he had no notice or knowledge that any rocks could be loosened or dropped down upon him and no warning that any rocks were to be or would be dropped; that he had no opportunity to investigate or examine the roof or sides above where he was working, and...