Crozier v. Noriega

• Decision Date: 17 February 1925
• Docket Number: Civil 2111
• Citation: 27 Ariz. 409,233 P. 1104
• Parties: H. C. CROZIER and JOSEPH MILES, Appellants, v. MARIANA B. NORIEGA, Administrator of the Estate of FRANCISCO NORIEGA, Deceased, Appellee
• Court: Arizona Supreme Court

233 P. 1104

27 Ariz. 409

H. C. CROZIER and JOSEPH MILES, Appellants, v. MARIANA B. NORIEGA, Administrator of the Estate of FRANCISCO NORIEGA, Deceased, Appellee

Civil No. 2111

Supreme Court of Arizona

February 17, 1925

APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Affirmed.

Messrs Hayes, Stanford, Laney & Allee, for Appellants.

Messrs Jennings & Strouse and Mr. Wiley E. Jones, for Appellee.

OPINION

LOCKWOOD, J.

Plaintiff Mariana B. Noriega, as administrator of the estate of Francisco Noriega, deceased, brought suit against H. C Crozier and Joseph Miles, under the Employers' Liability Law (Civ. Code 1913, pars. 3153-3179), for injuries sustained by the decedent which resulted in his death. The injuries occurred in a certain mine owned by defendants, situated in Pinal county, Arizona. The complaint sets up the usual allegations.

The defendants admit the ownership of the property, but allege substantially that the injury was due solely to the negligence of decedent himself. There are but two assignments of error and they raise the same real issue, viz.: That the evidence is not sufficient to sustain the verdict of the jury.

There is very little dispute in the testimony as to what actually happened; the difficulty being rather over a lack of evidence than a conflict thereof. With the exception of certain alleged admissions of decedent after his injury, we think the facts, so far as they are shown by the witnesses, are practically agreed upon.

It appears that decedent, together with one Refugio Santos, was employed by defendant Miles in the performance of annual assessment work upon the mining claims mentioned in the complaint. Both Santos and Noriega were experienced miners. The three men went to work in a tunnel, then twenty-four feet long. About 11 o'clock in the morning Miles and Noriega left the tunnel, and Santos loaded seven holes which had been drilled in the breast of the tunnel. The holes were loaded in the proper manner and the fuses ignited by Santos, Noriega and Miles being outside the tunnel close to the mouth. The fuses, in the ordinary course of affairs, would have burned about a minute and a half. Santos immediately left the tunnel and the three men stood and counted the explosions as they occurred. Five holes exploded; two did not. This was known to all of the three. About an hour and a quarter later Santos returned and examined the missed holes. He took hold of the fuses with his fingers, examined them with great care, and was sure there was no fire in them or in the missed holes. He then left the tunnel and told Noriega the conditions and that he (Santos) was going to get some new fuses, warning Noriega not to touch the holes and to stay outside of the tunnel, but, if he did go in, to be very careful. Noriega, however, took his candlestick, lit it and went inside. Santos started to get the fuses and caps to explode the two missed holes in the proper manner, which the undisputed testimony shows is by putting more powder and a primer on the top of the missed hole and shooting it, and a short time thereafter heard the explosion that injured Noriega.

There is no positive evidence as to just how long it was after Noriega went into the tunnel before the explosion occurred, but it was at best not over two or three minutes, and there is absolutely no direct evidence as to what occurred in the tunnel after Noriega entered it to the time of the explosion.

Upon hearing the explosion, Santos went back to help Noriega, and found him face down six or eight feet from the entrance to the tunnel. He, however, got up and walked out a moment later. The hole which exploded and caused the injury was about four and one-half feet from the floor of the tunnel. Noriega's wounds were chiefly in the face, right arm, neck and chest, though the left arm and hand were also somewhat hurt. There were no injuries below the knees. Noriega was taken to the hospital in Hayden and then removed to Phoenix, where he died as a result of the injuries, nine days after the accident.

So far all the evidence is in substantial agreement. The difference, so far as it is material to the determination of the case, depends upon the testimony of the witnesses Miles, Piper and Santos regarding alleged admissions and statements which Noriega made immediately after the accident and while in the hospital. Defendant Miles states positively Noriega told him immediately after the accident that he (Noriega) was digging in the hole with his candlestick and it exploded and further that it was all his own fault, and no one was to blame. He also says he heard Noriega telling his wife and father-in-law, while in the hospital, how it happened, but did not give that conversation in detail. The witness Piper testified that a few minutes after the accident he saw Noriega and spoke to him; that Noriega recognized him and a few moments later he asked, "How did this happen, Frank, was you digging the hole out?" and Noriega replied, "Yes; I was digging it out with the candlestick and it went off." The witness Santos testified, in answer to the question, "What did Francisco Noriega say, if anything, about what he was doing when the explosion took place?" "He told me that he did not know how it happened," and later on, "He didn't tell me any more after I asked him how it happened, that he did not know it did it, and then he told me to take charge of his children." The evidence shows the decedent Noriega spoke Spanish and fairly good English, but Santos spoke only Spanish. This is substantially all of the evidence the jury had to assist them in determining whether the accident was due to the negligence of Noriega or not.

We have held repeatedly that, under the Employers' Liability Law, it is incumbent upon plaintiff to allege and prove affirmatively that the accident was not due to the negligence of the injured party. Calumet & Arizona Mining Co. v. Chambers, 20 Ariz. 54, 176 P. 839; Southwest Cotton Co. v. Ryan, 22 Ariz. 520, 199 P. 124.

In discussing what is necessary to sustain that burden, we have said in Calumet & Arizona Mining Co. v. Winters, 25 Ariz. 483, 219 P. 585:

"So, while it may be the evidence fails to show Naylor's negligence did not cause his death, it likewise fails to show that his negligence did cause his death. When such is the case, the courts do not halt the proceeding and send the employee away empty handed, but resort to a rule of universal human experience and observation, and that is that, when a person is found dead, and the cause or means of death is not discoverable or ascertainable, the presumption will be indulged that the death was natural or accidental, and not suicidal. As was said by Mr. Justice BAKER, speaking for the court, in Davis v. Boggs, 22 Ariz. 497, at page 508, 199 P. 116, at page 120:

"'The law presumes that the injured party was in the exercise of due care until the contrary is made to appear. The presumption is founded on a law of nature, and has for its motives the fear of pain, maiming, and death.'

"This well-known rule that suicide will not be presumed, and that, as between accident and suicide, the law supposes accident, has been applied in a great number of cases arising under compensation statutes."

Our Employers' Liability Law is, though unique in form, undoubtedly to be classed as a compensation act. Arizona Copper Co. v. Hammer, 250 U.S. 400, 6 A.L.R. 1537, 63 L.Ed. 1058, 39 S.Ct. 553 (see, also, Rose's U.S. Notes Supp.).

It may be true, as suggested by counsel for defendants in his argument, that under the facts of the Winters case it was not necessary to make this statement of...