Downey v. Gemini Mining Co.

• Decision Date: 18 March 1902
• Docket Number: 1355
• Citation: 24 Utah 431,68 P. 414
• Court: Utah Supreme Court
• Parties: TIMOTHY DOWNEY, Respondent, v. GEMINI MINING COMPANY, a Corporation, Appellant

68 P. 414

24 Utah 431

TIMOTHY DOWNEY, Respondent, v. GEMINI MINING COMPANY, a Corporation, Appellant

No. 1355

Supreme Court of Utah

March 18, 1902

Appeal from the Fifth District Court, Juab County.--Hon. T Marioneaux, Judge.

Action to recover for alleged personal injuries received by the plaintiff while working in the defendant's mine. From a judgment in favor of the plaintiff, the defendant appealed.

AFFIRMED.

Messrs Rawlins, Thurman, Hurd & Wedgwood, Messrs. Brown & Henderson and Messrs. Bennett, Sutherland, Van Cott & Allison for appellant.

Messrs. Powers, Straup & Lippman for respondent.

MINER, C. J. BASKIN and BARTCH, JJ., concur.

OPINION

MINER, C. J.

--The plaintiff was an experienced miner in the employ of the defendant company in July, 1900, and gave testimony tending to show that at the time in question he was working on the 1,550-foot level. The only way for him to reach and return from the place of his employment was by climbing and descending a seven-foot ladder, the foot of which rested upon planks placed upon timbers, and the top thereof resting against the side of the wall. At the time of the injury complained of the plaintiff ascended this ladder as usual at one o'clock p. m. At this time the planks or platform at the foot of the ladder were all in place and nailed down, as had been the case for about one month. After plaintiff had ascended the ladder to his work in the stope above, the foreman of the mine, without plaintiff's knowledge, took up the plank flooring at the foot of the ladder, and left a hole in the platform. Beneath this hole and platform was a chute forty feet in depth. No warning was given to the plaintiff of this change in the platform or floor under the ladder, and no lights or guards were placed there to warn the workmen of the change and danger in descending the ladder. On his return from work plaintiff was required to descend this ladder, and was in ignorance of the changed condition of the platform below. He quit work as usual and descended the ladder with his tools in his arms, exercising, so far as appears, due care. The place where the ladder stood was dark. As he stepped from the last rung of the ladder to a point below, where he had been accustomed to step to the platform, he dropped into and through the chute mentioned, which was partially covered by the platform, about forty feet, and received serious and permanent injuries, for which he seeks to recover damages. The jury found for the plaintiff, and the defendant appealed.

Full instructions were given to the jury upon the issues involved, among others being the following, to which defendant excepted: "You are instructed that it was the duty of the defendant company to keep the premises about which the plaintiff was employed in a reasonably safe condition; that is to say, in such a condition as the premises would have been kept by a person of ordinary prudence under the same circumstances, considering the nature of the work to be accomplished." It is insisted that this instruction does not limit the jury to a consideration of the condition of the means of ingress and egress to the place of employment in the mine, as charged in the complaint. The proceedings show that the only inquiry concerning the defective condition of the mine was with reference to its condition down and at the foot of the ladder and the platform through a hole in which plaintiff fell. The condition of the platform and ladder were sufficiently and specifically referred to by the court in the statement of the case and charge to the jury, and the inquiry was directed to that condition and to no other part of the mine except where the injury is alleged to have occurred. The law was properly presented in this and other instructions given in connection therewith on that subject.

It is also insisted that the court erred in refusing to give the following request: "Defendant is not obliged to make every place where plaintiff might elect to go reasonably safe, nor was it obliged to anticipate that he would leave his place of work by any other than the usual way, or that he intended to put his tools in any particular place, and therefore, if you find that plaintiff, upon reaching the foot of the ladder, started to go in any other or different direction from that usually traveled by workmen leaving that portion of the stope from which plaintiff was returning at the time of the accident, then, in that case, he must be held to have assumed the risk and all dangers incident to such acts, and can not recover in this action, and your verdict must therefore be for the defendant." If any evidence was given in the case upon which this request could be predicated, it would have been proper, provided the court did not otherwise cover the question in its charge to the jury. This is so because each party is entitled to have instructions given based upon his theory of the case, if there is any evidence to support it. Buckley v. Silverberg (Cal.), 45 P. 804; Milling Co. v. Ames (Colo. Sup.), 47 P. 382. But counsel have failed to point out any evidence upon which this request to charge could be based, and we are unable to discover any such testimony in the record. The plaintiff descended the ladder with his face to it, and when he stepped off from the last rung he fell into the hole left in the platform by the foreman. It does not appear that he started to go anywhere else than down the ladder. He took but one step from the ladder, and that step let him into the hole left by the foreman in removing part of the platform. We find no merit in this exception.

It is also claimed that the language used in the instruction given to the effect that it was the duty of the defendant to keep the premises about which the plaintiff was employed in a reasonably safe condition--that is to say, in such a condition as the premises would have been kept by a person of ordinary prudence under the same circumstances considering the nature of the work to be performed--was erroneous. Defendant insists that the words "skilled in the business" should have been used after the words "persons of ordinary prudence," and that the jury should have been told to view the matter from a standpoint of an ordinarily prudent person, skilled in the business. In connection with this instruction the jury were also told that, "The defendant was under no obligation to keep the plaintiff absolutely safe and free from danger, nor to insure the plaintiff against accident. Its duty, to express it tersely, was to use ordinary care to secure the plaintiff's safety. Ordinary care, you are instructed, is the care that is ordinarily exercised by persons of average prudence under the same or similar circumstances. Just what that degree of care is, or would be, is for the jury to determine. Having determined what, under the circumstances, would have been ordinary care, it is for you to say whether such care was exercised by the defendant about the premises in question." This instruction referred to is to be taken in connection with the former. The care to be exercised was such as is ordinarily exercised by mine owners and persons of ordinary prudence under the same circumstances. If the defendant exercised such care as an ordinarily prudent person or mine owner would have done under the same or similar circumstances, then it exercised ordinary care. The place of the injury was at the foot of the ladder constructed for the miners to ascend and descend to and from their labor. The subject discussed was that of the defective condition of the platform, and of an injury occurring to plaintiff at that place in the mine, and the question was what an ordinarily prudent man or mine owner would have done under the same or similar circumstances. The jury could make no mistake in applying the instructions to the facts in evidence, and the care required of the defendant under such circumstances at the time and place named. The business of an ordinary miner performing services like those performed by the...