Inspiration Consol. Copper Co. v. Conwell

Decision Date03 June 1920
Docket NumberCivil 1757
PartiesINSPIRATION CONSOLIDATED COPPER COMPANY, a Corporation, Appellant, v. EMILY CONWELL, in Her Capacity as Administratrix of the Estate of LAWRENCE CONWELL, Deceased, Appellee
CourtArizona Supreme Court

APPEAL from a judgment of the Superior Court of the County of Gila. G. W. Shute, Judge. Affirmed.


This is an action for damages for the death of Lawrence Conwell alleged to have been caused by the negligence of the defendant. The plaintiff is the administratrix of Conwell's estate. Conwell was a motorman in the service of the defendant, and was killed by the derailment of a train of ore-cars. The plaintiff claimed damages in the sum of $25,000. The defendant interposed a general demurrer to the complaint, and pleaded both in abatement and in bar that the employment of Conwell was under the "Compensation Act," and that in consequence the "Compensation Act" furnished the exclusive measure of the liability of the defendant. The court overruled the demurrer, and on motion of the plaintiff struck out of both pleas. The action was tried on the complaint and the answer thereto, in which the defendant pleaded negligence on the part of the deceased Conwell, assumption of risk, and a general denial. The jury returned a verdict for plaintiff in the sum of $17,000. A motion for a new trial was made and overruled by operation of law. The defendant appeals, and assigns numerous errors.

Mr. E W. Rice, for Appellant.

Mr Norman J. Johnson and Mr. H. M. Foster, for Appellee.


BAKER, J. (After Stating the Facts as Above.)

The defendant's assignments of error Nos. 1, 2, 3 and 10 are based upon the action of the court in overruling the general demurrer to the complaint, striking out pleas in abatement and in bar of the action, and the denial of the defendant's request for an instructed verdict. Thse matters were all predicated upon the proposition that the Compensation Act (chapter 7, tit. 14, Rev. Stats. 1913) was applicable, and governed the employment of the deceased, Conwell, and that it measured the liability of the defendant and precluded plaintiff from instituting or maintaining the present action. The exact question was presented for decision, and has been considered and decided in this state adversely to the defendant's contention in Behringer, Admx., etc., v. Inspiration Consolidated Copper Co., 17 Ariz. 232, 149 P. 1065. We are pressed in a very elaborate argument to reconsider and overrule this decision. Th e case construes the statute touching the right of a personal representative to sue for wrongful death, and holds that the "Compensation Act" does not restrict or limit the right of a personal representative to resort to Lord Campbell's Act (paragraph 3372, Rev. Stats. 1913). It was decided July 7, 1915, and has been accepted and acted upon as correct ever since. The argument fails to convince us that the opinion violates any principle of law, or works any injustice, and we must consider the question as at rest. When a rule has once been deliberately adopted and declared, it ought not to be disturbed except for very urgent reasons, and upon a clear manifestation of error. We adhere to the ruling in the Behringer case.

Assignments Nos. 8, 9, 10, 13a, 13b, 13c, 13e, 13f, 13g, 14 and 15 raise the contention that the verdict and judgment are not sustained by the evidence: First, because there is no proof of proximate cause; and, second, because it is clear that the deceased, Conwell, assumed the risks. The undisputed facts of the case are that the deceased was engaged at work for the defendant, driving a motor to which was attached fifteen cars loaded with ore on the 400-foot level in the defendant's mine. Conwell, when driving the motor, rode on the right-hand side near the rear. While upon a curve and going at a speed of four or five miles an hour, two of the cars immediately in the rear of the motor jumped the track on the right-hand side, one of the cars striking and scraping the timber standing on the side of the track for a distance of about ten feet. The motor remained on the track. One or two jolts or jars of the cars occurred, one being so violent that Conwell's helper, who was riding on the motor in front, was compelled to hold on to a rod very tightly so as not to lose his seat. When the cars stopped, Conwell was found behind the motorman's seat between the motor and the first car, holding on to the seat. His leg had been dragged along the right-hand side of the track; one of the witnesses put his arms around Conwell to assist him, and found that he was crushed; he was bleeding at the mouth, and died in about ten minutes. No one actually saw just how the accident occurred.

It is argued that in the absence of direct evidence it was mere guess or speculation as to how Conwell came to his death, and for that reason the plaintiff could not recover. It is suggested that Conwell might have been standing up and accidentally overbalanced, or that a chain might have dropped off the pan on the motor, and he might have reached from his seat to the other side between the safety post and the projecting rib on the first car to rescue this chain when it was engaged by the wheel of the car, and the car was thereby derailed, pinning him between the car and the safety post, and that if his death thus occurred the liability of the defendant would not be involved. We are not at all impressed with this argument. Conceding, as we do, that it was not for the jury to guess or speculate as to the cause of the accident, we think it is far more reasonable to suppose, and the jury, in our opinion, might well have inferred, that the jolt of the derailment caused Conwell to lose his seat and fall between the car and the motor, or between the safety post and the car, and that he was thus crushed and killed. The jolt was so violent as to compel Conwell's helper to hold on very tightly to avoid losing his seat, and it seems reasonable to infer that the same jolt unseated Conwell. In our opinion, the evidence was sufficient to send the case to the jury upon this point, and we think that the jury was warranted in finding, as they must necessarily have done, that Conwell was killed by the derailment of the cars without any intervening cause such as suggested by the defendant.

The material question is, What was the proximate cause of the accident? It must be conceded that unless the bad condition of the track as alleged in the complaint was the efficient and dominant cause of the derailment of the cars, the plaintiff had no case. That cause is proximate without which the accident would not have happened. Railroad Co v. Kellogg, 94 U.S. 469, 24 L.Ed. 256 (see also, Rose's U.S. Notes). Proximate cause is a question of fact, and a question for the jury if there is substantial evidence from which it may reasonably be deduced that the negligence shown was the proximate cause of the injury complained of. In short, proximate cause may be determined from circumstantial evidence. Railroad Co. v. Kellogg, supra; Weleetka Cotton Oil Co. v. Brookshire (Okl.), 166 P. 408; Missouri, K. & T. Ry. Co. v. Minor, 75 Okl. 10, 181 P. 142. The evidence with reference to the condition of the track at the place of derailment tends to show that it was in a flagrantly defective condition. Two accidents had occurred at the same place prior to the one in question. The ground was muddy, soft and yielding under the track. The rails would go up and down when the motor was passing; the water being forced from under the ties. The rail on the right-hand side of the curve of the track was lower than on the left, and when the motor was passing, it would swing two ways; one movement went up and one went...

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    • March 12, 1986
    ...negligence or assumption of risk is, by its terms, transferred from the court to the jury." Inspiration Consolidated Copper Co. v. Conwell, 21 Ariz. 480, 486, 190 P. 88, 94 (1920). Since this Court first interpreted art. 18, § 5 in Conwell, we have not deviated from our belief that the jury......
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    ...and shall, at all times, be left to the jury. The scope and effect of article 18, § 5 were first addressed in Inspiration C.C. Co. v. Conwell, 21 Ariz. 480, 190 P. 88 (1920). There, our supreme court concluded that but for the provisions of article 18, § 5, the trial court would have been o......
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