Cook v. Bullion-Beck And Champion Mining Company

• Decision Date: 31 August 1895
• Docket Number: 589
• Citation: 41 P. 557,12 Utah 51
• Court: Utah Supreme Court
• Parties: PHILIP T. COOK, RESPONDENT, v. BULLION-BECK AND CHAMPION MINING COMPANY, APPELLANT. [1]

41 P. 557

12 Utah 51

PHILIP T. COOK, RESPONDENT, v. BULLION-BECK AND CHAMPION MINING COMPANY, APPELLANT. ^[1]

No. 589

Supreme Court of Utah

August 31, 1895

APPEAL from the District Court of the First Judicial District. Hon H. W. Smith, Judge.

Action by Philip T. Cook against the Bullion-Beck & Champion Mining Company for personal injuries caused by defendant's negligence. From a judgment for plaintiff, defendant appeals.

Reversed.

Messrs Rawlins & Critchlow, for appellant.

Mr. N A. Robertson and Messrs. Bennett, Marshall & Bradley, for respondent.

Does the evidence disclose any negligence on the part of the company? Was Cook guilty of contributory negligence? These are the questions, and they were decided by the jury, and their decision is final and cannot be reviewed by this court. "In this case there was evidence from which negligence on the part of the defendant might be inferred. At least, there was sufficient to submit to the jury." The foregoing is quoted from two cases reported in 4 Utah, one, Cunningham v. U. P. Ry. Co., at p. 206; the other, that of Trihay, at p. 480, and applies to the case at bar equally as to those referred to. It is further said in the former case and adopted in the latter: "Under our system of jurisprudence it is the province of the jury to pass upon the facts." "It is not only their privilege but their right, to judge of the sufficiency of the evidence introduced, to establish any one or more facts in the case on trial." And it is only "When there is a total defect of evidence as to any essential fact, or a spark--a 'scintilla,' as it is termed--the case should be withdrawn from the consideration of the jury." But to come back to our own side of the case: We wish to again call attention to the fact that the jury in this case, after a fair trial, and upon full and fair instructions, without an error in law, has found that the defendant was negligent and the plaintiff did not contribute by his own negligence to the injury, and that "Under our system of jurisprudence it is the province of the jury to pass upon the facts." And that decision of the facts is final and cannot be reviewed by the Supreme Court, unless there is a total defect of evidence as to the negligence alleged in the complaint or the absence of a mere spark or scintilla. It is also said in the case of Wedgewood v. The Chicago & Northwestern Ry. Co., reported in 44 Wis. at p. 44, quoting from p. 47: "Of course, it was not the province of the circuit court, any more than it is of this court to pass upon the weight or effect of this testimony but only to determine whether there was any negligence on the part of the defendant, which should be submitted to the jury." In the same case it was held to be the law, quoting from pp. 48, 49, that in a case where "It does not appear that plaintiff had any special charge of the car, except what is implied from his service as brakeman, or that he was intrusted with any duty of inspecting it." * * * "The company was under obligation to use reasonable means to guard against defects in its cars. It was bound to exercise reasonable diligence in watching its cars, inspecting them; and keeping them in repair. This duty it owed its employes. The danger they incurred in entering its service was not to be increased by neglect or failure to perform this legal duty." The ruling in this case is followed by all Wisconsin cases where the point is involved. See 45 Wis. 480; 47 Wis. 606.

Where an employe contracts to perform for extra compensation hazardous service, he only contracts to take upon himself the risks incident to that employment, and not risks growing out of negligence of the employer. Trihay v. Mining Co., 4 Utah, 469. In the above case the evidence showed that plaintiff was injured by falling scale while timbering a fresh stope, and tended to show that the ground needed immediate timbering, as the stope was broken, to keep it safe, and it was held sufficient evidence to sustain a verdict. See, also, Cunningham v. Coal Co., 4 Utah, 206. If facts exist, known to the employer and unknown to the employe, increasing the risks of a miner beyond the ordinary hazards, the employer is bound to disclose such facts to his employes, otherwise he is liable for negligence in case of injury to the latter resulting from such unusual risks. Strachndorf v. Rosenthal, 30 Wis. 674 (10 Morrison, 676). Employer is not an insurer of safety, but bound to diligence. Canter v. Colorady M. Co., 15 Morrison, 559; Quincy Coal Co. v. Hood, 12 Morrison, 128; Peery v. Rickets, 55 Ill. 234, 9 Morrison, 687; Kielly v. Belcher Co., 3 Sawyer, 437, 10 Morrison, 3. As to the responsibilities of owners for condition of premises and invitation, see: Bushwell on Law of Personal Injuries, § 66; Bennett v. R. R. Co., 102 U.S. 577; Ryan v. Fowler, 24 N.Y. 410; Appeal of Standard Mfg. Co., 18 A. 637; Bus. on Per. Inj., § 194, p. 318; Behm v. Ormond, 58 Wis. 1; C. & A. R. R. Co. v. Shannon, 43 Ill. 338; Schooner Norway v. Jensen, 52 Ill. 373; Ill. C. R. R. Co. v. Welch, 52 Ill. 183; Pantzar v. Tilly Foster M. Co., 99 N.Y. 368.

MERRITT, C. J. BARTCH and KING, JJ., concur.

OPINION

MERRITT, C. J.:

The complaint in this action alleges: That on and prior to March 6, 1894, plaintiff was in the employ of defendant, at its mines in Eureka, and that, prior to said time, defendant had constructed on and across certain timbers in the Daisy stope a certain walk, for the use of the employes of defendant, of several planks, laid end to end across said timbers and through the stope. That the walk was negligently and carelessly constructed in part, and of materials that were defective and in an unsafe and dangerous condition, and unfit for the purpose, and known to the defendant at the time to be so; and defendant negligently and carelessly permitted and allowed part of the materials entering into the construction of the said walk to become defective, unsafe, and dangerous, and to remain in such condition, knowing that they were becoming and were in such condition, and that they were so unsafe, defective, and dangerous on the day of March 6, 1894. That plaintiff, while in said employ, and while discharging the duties of his employment, and while using due care and caution for his safety, and without any negligence on his part, stepped upon and passed along said walk, and did not then, or prior thereto, know of, nor could he discover by the exercise of reasonable diligence, the defective or unsafe condition of said walk, or the materials of which same was constructed; and one of the unsafe and defective planks constituting said walk then and thereupon broke, and precipitated plaintiff downward 36 feet, whereby he sustained a fracture of one of the bones of the right leg, and sprains of the ankle and knee and shoulder, and bruised and injured his ribs, spine, and back, and sustained other injuries and wounds, internal and external, and was thereby caused physical pain and suffering, and was permanently hurt and injured, to his damage in the sum of $ 15,000, in addition to the sum of $ 150 paid for medicine and medical attendance.

The answer denied that at the time mentioned in the complaint, or at any other time, it was the duty of defendant to provide or keep for the use of plaintiff a safe or suitable plank or walk, in good condition or repair, at the place mentioned in the complaint of plaintiff; and denied that defendant negligently or carelessly constructed at the place mentioned in the complaint a walk, or constructed the same out of defective materials, or that the materials were unsafe or dangerous, or unfit for the purpose, or that defendant negligently or carelessly, or at all, permitted or allowed any part of the materials entering into the construction of the said walk to be or to become defective or unsafe or dangerous, or to remain in a defective, unsafe, or dangerous condition, or knew that the same was becoming or remaining in a dangerous, defective, or unsafe condition; and denied that at the time or place mentioned in the complaint, or at all it was the duty of the defendant to construct or maintain a walk for the benefit of plaintiff, or for any other purpose, or that it was the duty of defendant to keep same in repair, or in a safe condition; and denied that the plaintiff was precipitated through the timbers of the mine while using due or any care or caution for his safety, or that it happened without negligence on the part of plaintiff; denied that plaintiff was unaware of, or could not discover by the exercise of reasonable diligence, the condition of the walk or plank, or the condition of the material of which it was constructed; denied that the injuries or wounds were sustained in the manner set forth in the complaint, or by reason of any negligence on the part of defendant; and denied that he was caused, or has endured, any physical or mental pain or suffering, or was permanently hurt or injured, or damaged in the sum of $ 15,000, or any other sum whatever; and denied that he was compelled to pay, or has paid, $ 150, or any other sum, for medicine or medical attendance. And for a further answer the defendant alleged that at the time mentioned in the complaint the plaintiff was in the employ of defendant as a timberman in its mine, and that, at and prior to the time mentioned in the complaint, defendant was engaged in repairing an unused portion of the mine, and that in the course of said employment it became and was the duty of the plaintiff to pass through the place mentioned in the complaint, which place or stope was then, and for a long time prior thereto had been unused and abandoned; that plaintiff well knew the character of the said stope, and the timbers therein, and that the same were or might be unsafe, and...