Davis v. Holy Terror Mining Company

• Decision Date: 03 April 1906
• Citation: 20 S.D. 399,107 N.W. 374
• Parties: MINOT DAVIS, Plaintiff and respondent, v. HOLY TERROR MINING COMPANY, Defendant and appellant.
• Court: South Dakota Supreme Court

20 S.D. 399

107 N.W. 374

MINOT DAVIS, Plaintiff and respondent,

v.

HOLY TERROR MINING COMPANY, Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Pennington County, SD Hon. Levi McGee, Judge Affirmed James W. Fowler, Chauncey L. Wood Attorneys for appellant. Buell & Gardner, S. C. Polley, C. J. Patton for respondent. Opinion filed April 3, 1906

HANEY, J.

This is an action to recover for injuries sustained by the plaintiff while employed in the defendant’s mine. The jury returned a verdict for $10,000, judgment was entered thereon, defendant’s application for a new trial denied, and this appeal taken.

The issues involved are thus stated by the learned circuit court in its charge to the jury, to which statement no exception was taken:

“That the defendant company had in operation for some time prior to October 22, 1901, and tip to within a few minutes before the injury of the plaintiff, certain machinery for the purpose of supplying air to the point where this plaintiff and others were working, which machinery is commonly called an air compressor, and which machinery also operated the pumps for the purpose of raising the water from the bottom of the shaft; and while the plaintiff and others were working in said shaft, the said machinery, which was insufficient in capacity and by reason of the negligence and carelessness of the defendant, its agents, and employes, became out of order in such manner as to fill said mining shaft with gas and heat, thereby burning the body of this plaintiff in such a manner as to cripple him for life, thus preventing him from earning a living at manual labor, and causing him great mental and bodily pain and suffering to his damage in the sum of $20,000.”

The defendant answering plaintiff’s complaint, admits that it is a corporation, and was at the time mentioned in the plaintiff’s complaint transacting business upon its property at Keystone, in said county and state, and was using in the prosecution of its business certain machinery and workmen, and among the workmen employed was the plaintiff, but it specifically denies that the plaintiff has been damaged in the sum of $20,000, or in any other sum whatever, by reason of the acts complained of in his complaint, and denies that it is, in any way, accountable for any injuries which were received by the said plaintiff at the time mentioned in plaintiff’s complaint. It further denies that the said injuries, if any were received by plaintiff were caused by the negligence, carelessness, or fault of the defendant, its agents, or servants, or that such injuries were received because of defective machinery, or the negligent management of such machinery by its agents, servants, or employes, and alleges that if the plaintiff received any injuries at the time complained of, it was the result of his own negligence and carelessness, or that of his co-workers engaged in the same general business with him.”

It is contended the court erred in overruling defendant’s objection to the following question propounded to one of plaintiff’s witnesses on his direct examination: “Q. In order to communicate from the bottom of the winze to the Keystone Mill, for instance, what would be necessary? (The defendant objects to the question as incompetent; objection overruled, and defendant excepts.)” The contention is untenable: (1) Because the objection was insufficient to justify a review on appeal; (2) because, if there was error in the ruling it was harmless, the same facts having been testified to by another witness without objection. State v. LaCroix, 66 NW 944; Mathews v. Silvander, 85 NW 998; Muller v. Flavin, 83 NW 687. This question was asked by the plaintiff of one of his witnesses:

“Q. Did you observe the condition of the receiver and the pipe running from the receiver to the mine at that time, and if so in what condition did you find it?

By Mr. Bennett (attorney for defendant).

Q. How long was this of which you are speaking prior to the time of the alleged accident in the mine?

A. Well, as near as I can come to it, it was two weeks.

Defendant now objects to the testimony as to the condition of the machinery at that time or any opinion expressed by the witness on the condition of the machinery two weeks before the alleged accident. Testimony must show the condition of the machinery at the time of the accident.

Objection overruled. Defendant excepts.

A. It was red hot.”

The answer was not responsive; there should have been a motion to strike out on that ground; and, moreover, the time was not so remote as to render the evidence inadmissible. There was no reversible error in respect to this ruling.

Plaintiff’s instruction No. 6, was as follows:

“You are instructed, gentlemen of the jury, that it is the duty of the master, in this case the defendant, the Holy Terror Mining Company, to furnish its servants with a reasonably safe place in which to work, reasonably safe and proper materials, machinery and appliances, and to keep them in proper repair and reasonably safe; and you are further instructed that these duties are personal in their nature, and the master cannot escape liability by the attempted delegation thereof to some one else. The servant has the right to presume that the master has discharged his duty in these regards, and if you find from the evidence in this case that the air compressor in use at the Holy Terror Mine on the 22nd day of October, A. D. 1901, was not kept in a reasonably safe condition, but was negligently allowed to get out of repair, whereby the compressor became ignited, forcing gas and foul air into the compartment of said mine in which the plaintiff was engaged at work, and that said gas and impure air suffocated and overcame him, causing him to fall upon the pump, or other appliances in said compartment, and resulting in the injuries of which he complains, then I instruct you that the defendant would be liable to the plaintiff for said injuries and you will assess the plaintiff’s damages.”

Concerning this instruction defendant’s assignment of error is as follows:

“The court erred in giving instruction No. 6, requested by the plaintiff. For the reason that said instruction is misleading in this that plaintiff’s right to recover is based upon the negligence on behalf of the defendant, without informing the jury that even under all the circumstances supposed in the instruction the plaintiff should be found without fault or negligence on his part and since there is no other instruction given by the court, that can be reasonably taken to cure the defect above specified in said instruction No. 6.”

Presumably this assignment corresponds with the specification of error relating to the instruction in the bill of exceptions or statement of the case upon which the motion for a new trial was based, otherwise no objection to the instruction was preserved, and no other ground of attack than the one assigned is now available. Hedlun v. Mining Co., 281, 92 NW 31. It is not tenable for the reason that the court was not required to cover every phase of the case in that particular instruction, and in another portion of its charge the jury was instructed that “every one is responsible, not only for the result of his own unlawful acts, but also for any injury caused to another by his want of ordinary care or skill in the management of his property or person except so far as the latter has unlawfully or by want of ordinary care brought the injury upon himself.” In the absence of any request on the part of the defendant to particularly charge with respect to contributory negligence, this general statement on the subject was sufficient.

The contention that the court erred in giving plaintiff’s instruction No. 9 is clearly untenable for the reason that substantially the same instruction was given on request of the defendant.

There being no available objections to the charge, the next inquiry is whether the evidence, considered with reference to the issues submitted to the jury, was sufficient to justify a verdict for the plaintiff. If the jurors understood and obeyed the court’s instructions they must have been satisfied that the plaintiff was without contributory fault and that the defendant was negligent with respect to the selection of its employes, the equipment of its mine, or the condition of its appliances. We think the evidence disclosed no want of care in the selection of employes, but as to the character and condition of defendant’s appliances there certainly was at least room for differences of opinion by equally intelligent and impartial persons. When the accident occurred, the plaintiff with other employes, was working in a winze which extended in a nearly vertical direction about 100 feet down from the tenth level. The drills, pump, and hoist were operated by means of an air compressor.

Concerning what occurred at the time of the accident, the plaintiff testified:

“All four of us were there at work when we discovered the gas was escaping. Andy Miller remarked something about bad air, and I do not know what it was. The sensation produced was real warm and hot and oppressive, and affected our breathing. When I found that gas was escaping, I cranked the machine down as tight as I could, and we all got on the bucket. The bad air seemed to be escaping from the machine and pump. The air looked misty and didn’t look like it always did. I do not remember anything about the heat, just remember that it was hot there. We all got on the bucket and rung three bells, and he hoisted us up to this 18-foot and stopped and we stood there and rung six or seven times more, and I do not know how many times; perhaps we stood there 15 or 20 minutes and didn’t get any answer, and he would not hoist us and we started to climb out. The air appeared to be getting worse all the time. It appeared like an hour and a half to me. Andy Miller got out first. He started up the...