Harvey v. Alturas Gold Min. Co., Ltd.

• Decision Date: 16 January 1893
• Parties: HARVEY v. ALTURAS GOLD MINING CO., LIMITED
• Court: Idaho Supreme Court

31 P. 819

3 Idaho 510

HARVEY v. ALTURAS GOLD MINING CO., LIMITED

Supreme Court of Idaho

January 16, 1893

MASTER AND SERVANT-PRESUMPTION AS TO SERVANT'S SKILL AND EXPERIENCE.-The general rule as between master and servant is, a servant undertakes, when he engages in a certain kind of work, that he has the necessary skill and experience to perform the work he undertakes; that he understands the management of the machinery necessary to perform this work the machinery generally used to perform such work, or the particular machinery which he sees is in use in this particular instance.

CONTRIBUTORY NEGLIGENCE OF SERVANT.-That he will exercise the necessary care used by a man of prudence in doing such work as he is obliged to perform for his employer; if he fails in either of these, and is injured in consequence thereof, he is guilty of contributory negligence and cannot recover.

DUTY OF EMPLOYER-TO FURNISH SUITABLE MACHINERY AND TOOLS-TO KEEP SAME IN GOOD CONDITION.-On the other hand, his employer engages to furnish machinery and tools ordinarily used in the performance of such work; that he will keep such machinery and tools in a reasonably safe and good condition while such work is being performed. If the employer fails in either of these particulars and the servant is injured thereby, the servant, having filled all the conditions required on his part, can recover a reasonable sum for damages by him suffered.

SERVANT TO NOTIFY EMPLOYER IF TOOLS ARE DEFECTIVE.-If the servant after engaging in the work, finds the tools defective and not in good condition, and that some of them are dangerous, then he is charged with another duty-that of informing his employer, or his agent who is directing the work, of such defect.

EMPLOYER REFUSING TO PUT MACHINERY AND TOOLS IN GOOD CONDITION-REASONABLE TIME.-If the employer, after being informed, refuses to put the machinery or tools in good condition, the servant should decline to do the work with such machinery; if he does not do so, and is injured thereby he cannot recover. And if, when so informed, the employer promises to remedy the defect within a reasonable time, the servant may continue in the work, and if he is injured within such reasonable time, without any fault on his part, he can recover for such injury.

WHETHER INJURY OCCURRED WITHIN REASONABLE TIME QUESTION FOR JURY.-The question as to whether the injury occurred within a reasonable time after the promise made to repair the defective machinery is a question for the jury, with proper instructions from the court.

EMPLOYEE MAY RECOVER DAMAGES.-If the promises are such that a prudent man might reasonably rely upon them with confidence that they would be fulfilled, he may continue in the work, and if he is injured thereby, he may recover damages from his employer.

(Syllabus by the court.)

APPEAL from District Court, Elmore County.

This is an action at law brought by the plaintiff to recover damages for certain injuries suffered by him in the employ of the appellant as a miner and pumpman in the Ida Elmore mine at Rocky Bar, in what is now Elmore county, in this state. The plaintiff alleges that the defendant is a corporation; that heretofore, on the eighteenth day of August, 1886, the defendant was operating, working and mining that certain mine in Rocky Bar, Alturas county, Idaho, known as, and called the Ida Elmore mine; that the plaintiff was working at said time in said mine as a pumpman, and had charge of the pump in said mine in the night-time; that as such it was his duty to attend to the running of the pump in said mine, which is of that class called "Cornish" pumps; that said pump in said mine was not in good condition, and when it required repacking or repairing, was dangerous by reason of certain defects in its construction, and of injuries and breakages which it had some time theretofore sustained. That the doorplate of the chamber had been broken, and in replacing the same, instead of using a new one, the said broken piece had been improperly used, and instead of so fixing it that it might be removed when required as the same was devised and intended in the construction of said pump, it had been permanently fastened to the said cylinder by rivets and bolts in such a manner that it could not be removed as intended thus making it necessary in reaching the valves or any part of the inside of said cylinder, instead of removing said door or plate as intended, to remove the top or head of said cylinder, to do which it was necessary to lift up the top or head of said cylinder, together with the column and pump-rod suspending the same by use of a yoke devised and in use in said mine for that purpose. That the said Ida Elmore mine had been for a long time prior to the said eighteenth day of August, filled with water, and by reason thereof the different pieces, and particularly the yoke above mentioned had become slimy and slick so that it did not hold well, and was unsafe to use for the purpose above set forth. That the defendant had at said mine, on or before the said eighteenth day of August, duplicate doors or plates of the kind above mentioned, fitted to and appropriate to be used on said pump cylinder, but had failed and neglected to replace the said defective and broken door or plate with one of the said duplicate perfect ones mentioned, and willfully and negligently permitted said pump to remain in the defective and dangerous condition before alleged. That before the said eighteenth day of August, plaintiff having discovered the defective and dangerous condition of said pump, reported the same to the foreman of said mine, and told him it was unfit for use and dangerous, and asked permission to properly repair the same and put it in a good condition by replacing said broken door or plate with one of the perfect duplicates aforesaid, to which said foreman refused his assent and directed plaintiff to continue the use of said pump as theretofore, and informed plaintiff that no change would be made until after the first of the following month. Plaintiff protested against the use of the said pump in its defective condition, but was required and compelled, in the regular course of his employment, to use the same, notwithstanding its dangerous condition. That, on the eighteenth day of August, 1886, it became necessary to repair the valves and packing in the said cylinder, and being unable to remove the said doorpiece for that purpose, as hereinbefore described, plaintiff reported to the shift boss in said mine, who requested and directed him, as was his duty, to have some miners, under his direction, hoist the pump column and rod with cylinder head away from and above the cylinder, so that plaintiff could reach the bucket thereof. That thereupon blocks and tackle were attached to the said rod and column and the same were, by the miners at work in said mine, hoisted through the yoke above described and the said yoke clamped together with the bolts and appliances aforesaid as firmly as its condition would permit. The cylinder head and lower end of column and rod were then about two feet above the top of the cylinder, thus leaving the top of the cylinder open when the same was so hoisted and clamped as aforesaid. Plaintiff, who was using the cylinder at the bottom of the mine, called up to the miners who were at work as aforesaid, a distance of about seventy-five feet above him in the shaft, if everything was ready and made fast and safe, to which they replied that it was. That thereupon plaintiff commenced making the repairs. That, in preparing for said work as aforesaid, and in doing the same, plaintiff took every precaution to protect himself from injury that the condition of said pump and appliances would allow, and neglected no means that were then and there to be had and used to prevent accident and avoid danger. That said cylinder head, column and rod are of great weight; that, while plaintiff was doing the said necessary work in said cylinder, as aforesaid, the said pump column, by reason of the said defective condition of the yoke, slipped through said yoke and fell with great force and violence, with the combined weight of the column, cylinder head and pump rod upon plaintiff's arms, crushing them between the cylinder head and the cylinder, thereby inflicting upon him injuries of dangerous and painful character. That said injuries have completely and permanently disabled him, and incapacitated him from pursuing his occupation above mentioned, or any avocation involving or requiring any physical strength or the use of his arms. That by reason of the injuries aforesaid, he has been rendered, and is now and will be hereafter for the remainder of his life, unable to maintain himself and family by his labor, or any occupation with which he is familiar, and demands damages in the sum of $ 30,000. The defendant, answering, admitted its corporate character, admitting that at the time alleged it was mining, operating and working the said mine as set forth in the complaint. Admits that the doorplate of the chamber, as described in plaintiff's complaint, had been broken, and for the purpose of preventing leakage in the cylinder the same had been permanently secured and fastened. Avers contributory negligence on the part of the plaintiff, and denies all the other material allegations. Trial was had before the court and a jury, resulting in a verdict and judgment for plaintiff in the sum of $ 10,000. Defendant moved for a new trial, on the ground that the verdict is against law, and on the ground of errors of law occurring at the trial and excepted to by the defendant. Said motion was heard upon a statement of the case by the Honorable C. O. Stockslager, judge of the fourth judicial district, and a new trial refused, from...