Crowley v. Croesus Gold & Copper Min. Co.

CourtUnited States State Supreme Court of Idaho
Citation12 Idaho 530,86 P. 536
Decision Date06 July 1906

86 P. 536

12 Idaho 530

JOHN CROWLEY, Respondent,


Supreme Court of Idaho

July 6, 1906


1. The instructions given on the trial can only be reviewed in this court when they are saved by bill of exceptions, they being no part of the judgment-roll.

2. Affidavits purporting to show errors committed in impaneling the jury are no part of the judgment-roll, and can only be reviewed when saved by bill of exceptions.

3. The certificate of the clerk of the district court that certain affidavits were used on the application for a new trial, and that they were all the affidavits used, is not sufficient to authorize this court to consider such affidavits. Such certificate must be made by the trial judge or in an authenticated record certified by the [12 Idaho 531] judge showing what papers were used on such application for new trial.

4. A certificate by the trial judge that "I have this day settled the within statement in the manner marked by me in pencil, allowing the proposed amendments where so marked and disallowing them where so marked," is not sufficient to authorize this court to consider the statement on appeal, as it is not known that such certificate was made after the statement was engrossed.

5. An objection that the complaint does not state a cause of action first made in this court will not warrant the court in granting a new trial where it is shown that the complaint, even though in artistically drawn, states that the injury complained of resulted from the careless and negligent construction and operation of appellant's machinery and appliances used in appellant's mine, and further calls attention to the particular portion of such appliances that were defective.

(Syllabus by the court.)

APPEAL from the District Court of the Fourth Judicial District for Blaine County. Hon. Lyttleton Price, Judge.

Respondent commenced his action for damages for personal injuries sustained while at work in appellant's mine. Judgment for plaintiff, from which and an order overruling a motion for a new trial, the appeal is taken. Affirmed.

Judgment affirmed. Costs awarded to respondent.

McFadden & Broadhead, for Appellant.

A complaint in which a cause of action is stated for the recovery of damages for personal injuries should contain and state with precision an allegation or statement of the facts and circumstances from which it is shown that the defendant owed a legal duty to the plaintiff. An allegation of a duty standing alone is insufficient. (Chicago etc. R. Co. v. Clausen, 173 Ill. 100, 50 N.E. 680; Gibson v. Leonard, 37 Ill.App. 244, 349; Angus v. Lee, 40 Ill.App. 304.)

The pleader must state facts from which the law will raise a duty and show an omission of duty and resulting injury. (Taylor v. Felsing, 164 Ill. 331, 45 N.E. 161.)

A declaration for wrongfully and negligently injuring or killing another, without stating the facts constituting the negligence, ought to be held insufficient. (Cotton Oil Co. v. Shamblin, 101 Tenn. 263, 47 S.W. 496; Chicago etc. R. Co. v. Harwood, 90 Ill. 425.)

S. B. Kingsbury and A. A. Fraser, for Respondent.

The affidavits in the transcript, not being a part of the judgment-roll, nor incorporated into any bill of exceptions, should be stricken from said transcript. (State v. Larkins, 5 Idaho 200, 47 P. 945; Rich v. French, 3 Idaho 727, 35 P. 173; Stickney v. Hanrahan, 7 Idaho 424, 63 P. 189; Fish v. Benson, 71 Cal. 431, 12 P. 454.)

On appeal from order heard upon affidavits the only proper mode of authenticating such affidavits on appeal to this court is by bill of exceptions. (Somers v. Somers, 81 Cal. 608, 22 P. 967.)

The instructions set out in the transcript should be stricken out, as they are not embodied in a bill of exceptions and are not part of the judgment-roll. (Rev. Stats. 1887, sec. 4456.)

The purported bill of exceptions in this case, or statement on motion for a new trial, should be stricken from said transcript, as said statement is not properly authenticated by the trial judge, and the record shows that said statement or bill of exceptions was not authenticated by the judge after being engrossed, as required by law and the practice of this court. It is the duty of the appellant to furnish the supreme court a complete, clean, properly arranged and properly authenticated transcript. (Kimble v. Semple, 31 Cal. 657; Thompson v. Patterson, 54 Cal. 547; Cosgrove v. Johnson, 30 Cal. 509.)

The proper practice is to engross a statement and have the authentication of the judge indorsed on engrossed statement. (Pence v. Lemp, 4 Idaho 526, 43 P. 75; Hattabaugh v. Volmer, 5 Idaho 23, 46 P. 831.)

The statement on motion for a new trial and amendments, as allowed by the court, must be engrossed into one, and authenticated by signature of the judge in order to be regarded as the statement required by law and to be considered on appeal. (Smith v. Davis, 55 Cal. 26; Sawyer v. Sargent, 65 Cal. 260, 3 P. 872.)

Clerk's certificate that statement is the same which was used on motion for a new trial is entitled to no weight, as the clerk is not authorized to verify a statement in that form. (Fee v. Starr, 13 Cal. 170; People v. Bartlett, 40 Cal. 142.)

STOCKSLAGER, C. J. Ailshie, J., and Sullivan, J., concur.

OPINION [86 P. 537]

[12 Idaho 533] STOCKSLAGER, C. J.

This appeal is from the district court of Blaine county. Respondent as plaintiff commenced his action in that court, alleging that he had been damaged in the sum of $ 5,000, by reason of certain injuries sustained by him while working in the mine of defendant--appellant.

The first allegation is that defendant is a corporation organized and existing under and by virtue of the laws of the state of Wyoming, and is engaged in the business of mining in Blaine county, Idaho.

The second allegation is that defendant is the owner and operator of that certain mining property called the "Croesus Mine."

Allegations numbered 3, 4 and 5 are as follows:

"III. That plaintiff was, on the thirtieth day of June, 1904, an employee of defendant, was then set to work mining in said mine, and was by the defendant set and placed at work at the bottom of a deep shaft, about eleven hundred feet below the surface of the earth and collar of said shaft, and as such miner and employee was, on said thirtieth day of June, 1904, employed, set to work and placed by defendant at bottom of such said shaft, where the work and duty of plaintiff as such employee, and he was so directed by defendant, was to help to fill the hoisting bucket used and then being used to hoist the rock, dirt, ore and materials from the said bottom of said shaft up through the shaft to the top of the shaft and surface of the earth, and plaintiff was then and there so employed by and working for defendant, and under its direction, control and order. That it was then and there the work and duty of defendant, and a duty it owed this plaintiff so employed in carrying on such mining and in removing [12 Idaho 534] rock, earth, material and ore from said mine, to use, provide, maintain and employ, safe, suitable and proper machinery, plans, appliances, apparatus and materials for and in so doing and to employ competent, careful and skilled engineers, superintendents and foremen to make, set up, operate, install and keep in order said mine, shaft, machinery and all appliances and apparatus used and to be used for the purpose of removing rock, dirt, material and ore from said mine, and of lifting and elevating them in said shaft from lower to higher levels and especially in lifting large quantities of heavy material from great depths to the surface of the earth when its employees and this plaintiff were at work beneath the hoisting bucket, and appliances containing said materials and connected with the same; and when the hoisting bucket was loaded or filled with earth, rock, ore or other heavy materials, and was to be lifted or hoisted over and above plaintiff and other persons at work in bottom of said shaft, and was being so hoisted, it was the duty of defendant to use, employ, provide and allow used suitable, and only suitable, and safe plans, means, machinery, apparatus and appliances for such conditions and work and lifting, and to keep and maintain all in such suitable, safe and proper working condition, working properly and safely and working and operating in such manner as not to be likely to upset, or to fall, or to spill out the contents of said hoisting bucket when the same was above plaintiff and those working at bottom of said shaft, and to attend to and see to and effect that the earth, rock and dirt could be and was so being removed, raised and handled and by such appliances that it would not be apt to spill out or fall, and would not spill or fall and thus endanger the life and limb of plaintiff or of any person so working below.

"IV. That on said thirtieth day of June, 1904, plaintiff had been employed in said mine but five days and knew little of the conditions, state, safety or operation of said mine, or in said mine, or concerning the machinery, appliances or apparatus used and employed in said mine or in said shaft, and had little knowledge of the hoisting works therein or of the [12...

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21 cases
  • Maw v. Coast Lumber Co.
    • United States
    • United States State Supreme Court of Idaho
    • February 24, 1911
    ......Johnson, 15 Idaho 681, 99 P. 709, and Crowley. v. Croesus Gold etc. Co., 12 Idaho 530, 86 P. 536.). . ... for." ( Kaukola v. Oliver I. Min. Co., 159 Mich. 689, 124 N.W. 591; Burnside v. Peterson, ... court, in the case of Crowley v. Croesus Gold & Copper. Mining Co. , 12 Idaho 530, 86 P. 536, laid down the rule. ......
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