Engen v. Rambler Copper and Platinum Company

• Decision Date: 06 May 1912
• Docket Number: 667
• Citation: Engen v. Rambler Copper and Platinum Company, 20 Wyo. 95, 121 P. 867 (Wyo. 1912)
• Parties: ENGEN v. RAMBLER COPPER AND PLATINUM COMPANY
• Court: Wyoming Supreme Court

121 P. 867

20 Wyo. 95

ENGEN v. RAMBLER COPPER AND PLATINUM COMPANY

No. 667

Supreme Court of Wyoming

May 6, 1912

20 Wyo. 95 at 137.

Original Opinion of March 15, 1912, Reported at: 20 Wyo. 95.

Rehearing denied.

H. V S. Groesbeck, for defendant in error.

(On petition for rehearing.)The case was tried below as if there had been no reply.Counsel for defendant in error was not served with a copy of the reply, nor was one filed with the papers as required by statute.The leaky condition of the valve over the hoist does not show even prima facie negligence since the evidence shows that it was perfectly safe and that the accident did not result from any such defect.The allegations concerning the cause of the accident are contradictory and confusing, and cannot all be true hence they should not all be submitted to the jury to permit them to "guess" the cause of the injury.(Peterson v. Iron Works,93 P. 1077;Olmstead v Mfg. Co., (Wash.)94 P. 474;Sandt v. Foundry Co.(Pa.)63 A. 596;Min. & Mill. Co. v. Sullivan, (Colo.)92 P. 679;Iron Works v. Wantland, (Okl.)114 P. 717;Mau v. Lumber Co., (Ida.)114 P. 910;Cummings v. Copper Co.,40 Mont. 599, 107 P. 904;Stone v. R. Co.,35 Utah 305, 378, 100 P. 362, 390.)There was no evidence tending to show that defendant was negligent in allowing the valve to remain where it was placed.The evidence as to the statement made after the accident by the superintendent and hoistman should not have been admitted.(Luman v. Min. Co., (Cal.)74 P. 307;Borland v. Nevada Bank,32 Am. St. 41.)Such admissions could not bind the defendant and were not entitled to be submitted to the jury.Without that evidence there is nothing to show what caused the injury, or whether there was any direct negligence on the defendant's part in relation to the ice or frost on the brake.With that evidence excluded there would be left for consideration only the evidence relating to the competency of the hoistman, and the absence of a rule requiring a test of the hoisting works.The presumption is that the defendant did its duty in selecting competent servants, and that presumption is not overcome by proof of a single act of negligence on the part of the servant.(Hage v. Luedinghaus, (Wash.)111 P. 1041;Monson v. Copper Co.,39 Mont. 50, 101 P. 243;Taylor v. Mill. Co.,50 Wash. 306, 97 P. 243;Walkowski v. Consol. Mines,115 Mich. 629, 73 N.W. 895.)There was nothing in the evidence to submit to the jury tending to show the incompetency of the hoistman.Any prudent person would have employed him.We think it clear that the accident was unforeseen and could not be guarded against.Hence it was proper to direct a verdict.(Reino v. Montana M. L. D. Co., (Mont.)99 P. 853.)The statements made to the plaintiff by the defendant's superintendent and hoistman as to the cause of the accident were mere matters of opinion, and as such were incompetent and inadmissible.(Jones v. Hatchett,14 Ala. 744;R. Co. v. Hall,105 Ala. 599;Orr v. State, (Ala.)23 So. 696;Fogel v. R. Co., (Cal.)42 P. 565;Smuggler &c. Co. v. Broderick, (Colo.)53 P. 169;Hapkins v. R. Co.,78 Ill. 33;Beardstone v. Clark, (Ill.)68 N.E. 378;Brant v. Lyon, (Ia.)14 N.W. 227;Gilruth v. Gilruth,40 Ia. 346;Insley v. Shire, (Kan.),39 P. 713;Gilbert v. Guild, (Mass.),12 N.E. 368;Harris v. Clinton, (Mich.)31 N.W. 425;Ennis v. Little, (R. I.)55 A. 824;Beardsley v. Township, (R. I.)41 A. 618;Bruce v. Beall, (Tenn.)41 S.W. 445;Crane v. Columbus Con. Co.,73 F. 984;1 Wigmore on Ev., sec. 658.)

The verdict was properly directed upon the competent evidence in the case.(2 Thomp. on Trials, 1604, secs. 2242-2273;White on Inj. in Mines, secs. 132, 134;6 Ency.Pl. &Pr. 936;Bolln v. Metcalf, 6 Wyo. 1.)In a supplemental brief the following authorities were cited: Downey v. Sawyer,157 Mass. 418;Campbell v. Jugheart,50 A.D. 460;Bucher v. Pryival,45 N.Y.S. 972;Owen v. Mining Co., 92 Id. 270;Central &c. Co. v. Ault,75 Neb. 249;Snyder v. Rogers Co.,69 N. J. L. 347;Capasso v. Woolfolk, 163 N.Y. 472.

POTTER, JUSTICE.BEARD, C. J., and SCOTT, J., concur.

OPINION

ON PETITION FOR REHEARING.

POTTER JUSTICE.

Counsel for defendant in error has filed a petition for rehearing in this case.We have carefully considered the able brief filed in support of the petition, but remain convinced that the questions discussed in the former opinion were properly disposed of, and we deem it unnecessary to again state the reasons for the conclusions announced.The additional point is now made for the first time in this court that the statements made by the mine superintendent and hoistman to the plaintiff explaining the cause of the accident should have been excluded as incompetent.It is true that the testimony of the plaintiff concerning those statements given upon his direct examination was admitted over the objection of the defendant, but the same facts were again testified to upon his cross-examination, as shown in our former opinion and all his evidence relating to such statements was in the case when the motion was made and sustained for a directed verdict.It does not appear that such motion was sustained on the ground of the incompetency of the statements aforesaid, but on the contrary we think it appears that the verdict was directed upon the ground of the insufficiency of the plaintiff's evidence to establish his right to recover.Therefore, if it should be conceded that such statements were erroneously admitted it is doubtful if it would be proper in this court under the circumstances to exclude the same from consideration in disposing of the case.To now hold that such evidence was improperly admitted and affirm the judgment on that ground would deprive the plaintiff of the right to furnish other evidence upon the subject, if any should be available; a right which he would have had if the evidence had been excluded or stricken out upon the trial.Again to exclude it from consideration at this time would render the error in confining the showing as to the condition of the machinery...