Federal Mining & Smelting Co. v. Hodge

• Decision Date: 04 May 1914
• Docket Number: 2325.
• Citation: 213 F. 605
• Parties: FEDERAL MINING & SMELTING CO. v. HODGE.
• Court: U.S. Court of Appeals — Ninth Circuit

213 F. 605

FEDERAL MINING & SMELTING CO. v. HODGE.

No. 2325.

United States Court of Appeals, Ninth Circuit.

May 4, 1914

Whether an employé was guilty of contributory negligence held for the jury.

The defendant in error was the plaintiff in an action against the plaintiff in error to recover damages for injuries sustained while in the employment of the latter. The parties will be designated plaintiff and defendant, as they were in the court below. The plaintiff when injured was riding upon the bail and cable of a small skip operated on a hoistway or shaft of the defendant's mine. The hoistway was inclined at an angle of about 45 degrees, and was 500 feet long. The skip was a small car about eight feet long and three feet wide with four wheels which ran on T-rails. To the upper end of the skipway was attached a bail made of an iron rod about an inch in thickness, bent in a semicircular shape, and extending about a foot or a foot and a half above the skip. To the bail was attached a cable which passed up to the top of the skipway, and over a sheave wheel, and thence down the skipway to the drum of a small hoist situate beneath the skipway. There was no indicator upon the hoist. To signal to the engineer to hoist or lower the skip, a flashlight system was used. It consisted of a number of 16 candle power electric lights, one installed at the hoist, and one at each of the levels, the lights being all connected in one circuit and flashed by means of a cord provided at each level and within reach of persons riding upon the skip. The cord was used by the men riding on the skip, as well as by those who might be standing at stations, to signal the engineer to stop the skip. When the cord was pulled, all the lights would go out momentarily, and this was the signal to the engineer. To prevent the skip from running into the sheave wheel at the upper end of the hoist, there was placed across the skipway near the wheel a bulkhead or timber about 16 inches in diameter. The skip accommodated five men, and, when six rode upon it, it was necessary for one of them to sit upon the bail, leaning upon the cable with his feet braced upon the top of the skip. Six men had been riding on the skip just before the accident. The plaintiff was sitting on the bail. The skip had stopped at one of the levels and two of the men had gotten off. The remaining men intended to stop at the top level, but the skip was being drawn so fast that a signal to stop there could not be given. The skip was drawn on until it ran into the bulkhead where it stopped, and the plaintiff's leg was pinned between the timber and the skip.

The plaintiff in his complaint alleged negligence of the defendant in failing to have an indicator on the hoist so that the hoistman below could know the location of the skip, and in not having a proper system of signals for stopping the skip; in that the skipway was improperly lighted and the cable was old and uneven in size and did not wind evenly around the drum; and in that no proper rules were provided for the operation of the skip. The defendant denied these allegations of the complaint, and alleged that the plaintiff was injured by reason of his own negligence in riding upon the bail of the skip, in disobedience of the rules, regulations, and orders of the defendant, and in failing to give a signal to the hoisting engineer, that he assumed the risks of the occupation, and that if he was injured he was injured from the negligence of a fellow servant. The jury returned a verdict for the plaintiff for $1,000, and judgment was rendered on the verdict.

Featherstone & Fox, of Wallace, Idaho, for plaintiff in error.

Walter F. Morrison, Jr., of Coeur d'Alene, Idaho, and F. C. Robertson and Fred Miller, both of Spokane, Wash., for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and VAN FLEET, District judge.

GILBERT Circuit Judge (after stating the facts as above).

It is contended that the trial court erred in admitting evidence of the custom of the miners to ride six at a time on the skip, one of them sitting on the bail and cable. The contention relates to evidence which was admitted on the examination of one of the plaintiff's witnesses. On cross-examination he had testified that six men would ride on the skip, one of them upon the bail. On redirect examination he testified that the men had been riding six at a time ever since the skip had been installed. He was then asked:

'Q. Was there any rule there as to how many should go up? A. Never heard of any. Q. Any orders? A. No, sir; never heard of any. Q. Any custom? A. Well, the custom was six. Q. Always?'

To the last question objection was made. The objection was overruled, and an exception was taken, and, although there was no answer to the last question, it appears that when the witness was recalled he testified, over the objection of the defendant, that when six rode it was the invariable custom that one of them rode on the bail. The objection which was made to this testimony was that the defendant was not bound by any such custom. If by that it was meant that proof of such custom was not admissible to show liability on the part of the defendant, the answer is that it was not admitted for any such purpose, but for the purpose of showing the customary method of using the skip, and for the light which it might incidentally afford on the question of the plaintiff's contributory negligence. In that connection the court charged the jury that the mere fact that others may have ridden in the same position which the plaintiff...