Handley v. Daly Min. Co.

• Decision Date: 05 June 1897
• Docket Number: 759
• Citation: 49 P. 295,15 Utah 176
• Court: Utah Supreme Court
• Parties: WILLIAM HANDLEY, APPELLANT, v. THE DALY MINING CO., RESPONDENT

49 P. 295

15 Utah 176

WILLIAM HANDLEY, APPELLANT, v. THE DALY MINING CO., RESPONDENT

No. 759

Supreme Court of Utah

June 5, 1897

Appeal from the Third district court, Salt Lake county. Hon. Ogden Hiles, Judge.

Action of tort by William Handley against the Daily Mining Company for injuries sustained by plaintiff while employed in defendant's mine. From a judgment for defendant plaintiff appeals.

This is an action brought by the plaintiff to recover damages for an injury received by him while at work for the defendant in its mine. The complaint alleged negligence on the part of the defendant; that, by and through its station tender it negligently left the trips or chairs in the shaft of the mine extended into the shaft, so as to form an obstruction to the descending cage, upon which the plaintiff was descending into the mine; and that the cage struck thereon, and the plaintiff was injured; also negligence on the part of the engineer in operating said cage in a careless manner; also negligence in keeping in its employ the engineer then in charge of the engine, one Adamson, he being an incompetent and careless engineer, and that he was kept in the employ of the said defendant after it knew and it was understood that he was careless and incompetent. Due care on the part of the plaintiff was alleged. The answer denied all the allegations of the complaint. The testimony on the part of the plaintiff tended to show that he was a miner, employed in defendant's mine, and had been employed for a month prior to the date of the injury; that defendant had a perpendicular shaft, about 1,000 feet deep, with 10 levels about 100 feet apart, with a station on each level. The shaft had two apartments, known as the east and west apartments. At each station there were trips or chairs built, consisting of four pieces of iron fixed in a frame, so as to extend into the shaft, and constitute a rest or platform for the cage, when lowered for freight. These chairs are so arranged as to be thrown back by a lever, which is controlled by the station tender, whose business it is to indicate, by means of a bell at the top, to the engineer, and direct him when to raise and lower the cages. The station tender adjusts the chairs accordingly. The cages in each department of the shaft weigh a ton, and are connected with the engines by a flat iron rope, up the shaft, over a pulley, and down the reel to the engine. The reels attached to each cage are so arranged that when one is lowered, the other will rise. A steam engine furnished the power, and was operated by an engineer, and was adjusted to steam power and a system of brakes; the steam being applied by a lever, and the brakes applied by the feet. At the time of the accident, Patrick Breen was station tender, Adamson was engineer, and Quinn was foreman of the mine. Plaintiff was employed as a common miner on the stope below the ninth and tenth levels. Breen, the station tender was at work on the 700-foot level, filling cars on the cage in the east compartment, and had sent them to the surface. The cage was raised off the chairs in the seventh level, and Breen forgot to throw the lever and draw the chairs out of the shaft, thereby leaving a permanent obstruction in the shaft to any cage coming down from above. Breen then went to the 800-foot level, the west cage was lowered to him, and he waited for workmen, and placed them on the cage on the west compartment, and gave the signal to be raised to the surface. The cages were so adjusted that, when the west compartment cage was lifted to the surface, the east compartment cage would go to the 800-foot level, below the 700-foot level which was obstructed by the chairs. As the west cage went up the east cage came down, and struck with great force on the protruding chairs. Breen heard them strike, and thought it was a blast from the 1,000-foot level, 200 feet below, not then thinking that he had left the chairs protruding in the shaft. The engineer, after the cage struck the chairs, continued to raise the west cage, and pay out the cable on the east cage, supposing it had reached the 800-foot level, as shown by the indicator, and did not know that it had met with an obstruction. The west cage in the meantime was filled with workmen on the surface, and the engineer let them down the west compartment by means of the foot brake, which was used when there was a load on one cage, which would overbalance the empty cage going up on the other side. The slack cable which was resting on the east cage and which weighed about two tons, was taken up until the cage was reached, when it was jerked off the chairs, and brought to the surface, the west cage descending to the 1,000-foot level. The engineer, supposing, as he says, that the east cage was at the 800-foot level, where the station tender was, tried to communicate with him by means of shaking the cable, but received no reply. He then tried to attract his attention by raising and lowering the east cage, but again received no reply. The shift boss opened the cage, and the plaintiff, with other workmen, got upon the east cage, to be carried to their work, the west cage coming from the bottom empty. As the east cage was about to start down, the engineer received a signal to stop the up-coming cage on the 800-foot level, but disregarded the signal, and sent the men down on the east-side cage, as he had sent the men down on the west-side cage a short time before, using the footbrake for the purpose. The east cage, in which plaintiff was, descended at the usual rate of speed until it came to the 700-foot level, where the chairs formed a solid obstruction. The cage struck said chairs, the shock causing the injury to plaintiff, for which this action is brought.

The engineer testified that he did not know the chairs were in the shaft until he let plaintiff down; that, when the cage struck the chairs, he felt a perceptible shock vibrating through the machinery. Testimony was offered tending to show that a competent engineer would know when the east cage descended upon the chairs the first time, that there was an obstruction there; and that, when the cage was raised off the chairs by a sudden jerk, he should have known it. Evidence was also offered tending to show that the general reputation of Adamson, the engineer, was that of an incompetent and careless engineer before this accident, for several years; that he had several accidents in the same mine before, one of which resulted in the death of two or three miners, and that he had been laid off by defendant on account of such accident for a short time; that, five years before the accident, Quinn, who was then shift boss, and at the time of this accident superintendent of defendant's mine, had stated that Adamson was no good, because he was not a good engineer. Adamson was brother-in-law to the chief engineer of defendant, by whom he was hired. Other testimony was offered tending to show that the engineer did not pay proper attention to bells and signals, and would sometimes run cages to the wrong station, one witness testifying that he had done so about 100 times in 5 years. At other times he would take the cages away without signals. Several accidents happened in the mine while he was engineer. A year prior to this accident, broken chairs were seen at the bottom of the shaft, and the cage was broken. At another time the cable went down the shaft in a bunch. It was also said of him that he would drop or take up the cage too quickly, and was careless in handling it. Testimony was offered tending to contradict and explain plaintiff's testimony with reference to the reputation, competency, and carelessness of the engineer. At the close of the case, the court directed a verdict for the defendant. Plaintiff brings this appeal, and claims: (1) That the testimony tends to show that, but for the incompetency and carelessness of Adamson, the engineer, the accident would not have happened, and that his incompetency and carelessness were a concurring cause of the accident, and without which it would not have occurred. (2) That the testimony tended to show that the carelessness and negligence of the defendant in keeping Adamson in its employ after it had knowledge of his incompetency, and the carelessness of Breen in leaving the chairs protruding into the shaft, were concurrent efficient causes of the injury to the plaintiff. (3) That the defendant is liable for its negligence directly contributing as an efficient cause to the injury, even though the negligence of a fellow servant also contributed thereto.

Judgment of the court vacated and set aside, and a new trial granted.

Brown, Henderson & King, for appellant.

The employer is liable if he knows or could know in the exercise of reasonable diligence of the unfitness of a fellow servant. Bailey on Master's Liability for Injuries to Servant, 47 2 Jaggard on Torts, 998-999; 25 Lawyers Rep. Anno. 710-717, note; Laning v. Railway Co., 49 N.Y. 521; Rummell v. Dilworth, 111 Pa. St. 349; Railroad Co. v. Dolan, 32 Mich. 513; Banlic v. R. R. Co., 59 N.Y. 356; Coppins v. R. R. Co., 122 N.Y. 563; R. R. Co. v. Stupaak, 123 Ind. 210; R. R. Co. v. Hoover, (Md.) 29 At. Rep. 994.

While the presumption is that the master has exercised proper care in the selection and retention of the servant, and it is incumbent upon the party charging negligence in this respect to show it by proper evidence, yet this may be done by showing specific acts of incompetency and bringing them home to the knowledge of the master or company, or by showing them to be of such a nature, character, and frequency that the master in the exercise of due care must have had them brought to his notice. Bailey on Master's Liability, 55-57; Railway Co. v. Gilbert, 46 Mich. 179; Railway Co. v. Ruby, ...