Ewell v. Joe Bowers Min. Co.

• Decision Date: 28 January 1901
• Court: Utah Supreme Court
• Parties: LORENZO EWELL, Respondent, v. THE JOE BOWERS MINING COMPANY, Appellant

64 P. 367

23 Utah 192

LORENZO EWELL, Respondent, v. THE JOE BOWERS MINING COMPANY, Appellant

Supreme Court of Utah

January 28, 1901

Rehearing Denied February 21, 1901.

Appeal from the Fifth District Court Juab County.--Hon. E. V. Higgins. Judge.

Action to recover damages for personal injuries received by plaintiff through the negligence of defendant company. From a judgment for plaintiff defendant appealed.

AFFIRMED.

Messers. Rawlins, Thurman, Hurd & Wedgewood, and Messrs. Bennett Harkness, Howat, Sutherland & Van Cott for appellant.

There is no evidence in this case to sustain the verdict and the verdict is against law. Fritz v. Electric Light Co., 18 Utah 493; Bailey's Personal Injuries, vol. 1, note p 162; Burgess v. Salt Lake City Railroad Company, 17 Utah 406; Spriggs v. Moale, 92 Am. Dec. 698; Alexander v. Harrison, 90 Am. Dec. 431; Salterville v. Hicks, 57 Am. Dec. 577; Heath v. Whitebreast Coal Co., 23 N.W. 148 (Iowa) ; Jidkins v. Maine Cent. Ry. Co., 14 A. 735 (Me.) ; Balle v. Detroit Leather Co., 41 N.W. 216 (Mich.) ; Lord v. Pueblo Smelting and Refining Works, 21 P. 148 (Colo.) ; McGlynn v. Bordie, 31 Cal. 376; Mooney v. Lower Vein Coal Co., 8 N.W. (Iowa) 144 (652); Morrison v. Phillips and Colby Construction Co., 44 Wis. 411; Trappell v. City of Red Oak (Iowa), 39 N.W. 884; Cosgrove v. Pitman, 103 Cal. 273; Asbach v. Chicago, B. & Q. Ry. Co., 37 N.W. (Iowa), p. 183; Carruthers v. Chicago, R. I. & P. Ry. Co., 40 P. Rep. 915; United States v. Ross, 92 U.S. 283.

"Negligence, when relied upon, must be proved. It may be inferred from facts proved, but never from mere conjecture." Hewitt v. F. & P. M. R. R. Co., 67 Mich. 61; Quincy Mining Co. v. Kitts, 42 Mich. 41; Redmond v. Delta Lumber Co., 55 N.W. (Mich.), p. 1004; Sherman v. Menominee River Lumber Co., 77 Wis. 22, 45 N.W. 1079; Gores v. Graff, 77 Wis. 184, 46 N.W. 48. See, also, Dobbins v. Brown et al., 119 N.Y. 188; Mitchell v. Turner, 147 N.Y. 39; Philadelphia, etc., R. Co. v. Henrice, 92 Pa. St. 434; Gillespie v. McGowan, 100 Id. 144; Northern Central R. Co. v. State, 54 Md. 113; Cochran v. Densmore, 49 N.Y. 249; Baulec v. Railroad Co., 59 N.Y. 357; Hayes v. Railroad Co., 97 N.Y. 259; Rupert v. Ry. Co., 154 N.Y. 90; Fitzgerald v. Ry., Id. 263; Kinnesson v. Ry., 188 Mass. 1; Clare v. Ry., 167 Id. 39; Irmin v. Alley, 158 Id. 249.

D. D. Houtz, Esq., and Messrs. Powers, Straup & Lippman, for respondent.

"Whether negligence can be inferred from the evidence is for the determination of the court, but whether it ought to be inferred is a question for the jury." Pachero v. Judson Mfg. Co., 113 Cal. 545; McCurrie v. So. P. R. R., 122 Cal. 558; Linden v. Anchor Mine, 20 Utah 134; 58 P. 358, and cases there cited; Reese v. Morgan Mining Co., 17 Utah 489; 49 P. 824, and cases there cited.

Miner, C. J., Baskin, J., and Cherry, District Judge, concur.

OPINION

PER CURIAM.

The plaintiff Ewell brought this action to recover damages for an injury received by him while employed in the defendant's mine in the month of May, 1899. Plaintiff's evidence tends to show that at the time of the accident he was working on the 270 foot level; that a drift had been run south on the vein about sixty feet, and above this the ore had been stopped from the shaft, and the drift was timbered over and filled in from above, but there was left two openings from the level upwards into the stope. One of these openings was near the shaft, and the other about forty-five feet further in. This latter opening was about five feet square, just above the drift, and as it continued upwards about fifteen feet it widens to about six feet and about fifteen feet lengthwise with the drift. The filling slants down to the small opening immediately above the drift. This aperture opens above the drift into the stope, and is called "The Hole," to designate it from the stope, where the waste had not been filled in. No planks or means were provided for covering up the "hole." The planks and covers formerly used for covering it had been taken away about a month or more, by order of the foreman. Below this "hole" a platform had been laid on the floor of the drift to catch the ore shovelled down the "hole" from above, so it could be sorted. There was lagging on one side of the "hole" to the top about thirty feet; on the other side it was lagged for about ten feet. Above the lagging the "hole" spread out about fifteen feet from the lagging back to the wall. In this fifteen feet there was nothing but stulls to hold the walls apart. At this point the hanging walls were, as witnesses expressed it, "blocky" and "scarry," and would drop off and come down to the bottom of the level, where there was a platform for sorting it. The hanging walls were of porphyry, and, on exposure to the air, for a time, would drop off unless properly timbered. The stulls that had been put in would not hold the ground after it had been exposed to the air three or four weeks. The foreman informed the superintendent of the mine before the accident that the stulls were not sufficient to hold the ground, and asked him if he would put in a chute; that the walls were unsafe, and that it was caving around the stulls. The superintendent replied, in substance, that he did not think it necessary to put in a chute; that he should put in more stulls. It also appears that in order to hold the ground and make it safe, it was necessary to put in square sets or chutes, and fill in around the chutes. There was no lagging on the hanging walls, and the rock had "slabbed" off and fallen down in places. If anything fell off from the hanging walls it would go down to the bottom of the 270 foot level on the platform for sorting ores.

On the day of the accident plaintiff (the respondent) was working in the stope about fifteen feet from the opening. On this side the "hole" had been lagged up and the filling stopped upwards towards the place where he was working. At 11:30 A. M. plaintiff "put off a shot" about fifteen feet north from the "hole." Part of the ore broke loose and rolled down on the platform below, and the balance was shoveled down by the respondent. Respondent says that he shoveled the waste and everything of that kind down the "hole" before he commenced sorting the ore after dinner. The testimony on this subject, however, is contradictory. After this, respondent states, he went to dinner on the 270 foot level. After dinner the shift boss directed respondent to sort the ore that had been thrown down and which lay on the platform under the "hole." While so employed stooping over the pile of ore on the platform, a rock fell from above and struck him upon the head inflicting a serious injury. The shift boss saw the rock strike the respondent on the head, and he immediately pulled him from under the "hole." He says that right away after the respondent was struck there was some ore came down; "that he was afraid he would get the contents of the rest of it, and he pulled him out as quickly as possible;" that he saw hanging wall material and porphyry on the platform immediately after the respondent was struck, also some ore. He says, also, that it was the same looking stuff and material as the hanging walls from the "hole" above.

Upon this statement of facts the appellant contends that the evidence is insufficient to sustain the verdict or to show negligence on the part of the appellant. It is true that no witness...