Jenkins v. Mammoth Mining Co.

Citation68 P. 845,24 Utah 513
Decision Date03 May 1902
Docket Number1340
CourtSupreme Court of Utah
PartiesABRAM JENKINS, Respondent, v. MAMMOTH MINING COMPANY, a Corporation, Appellant

Appeal from the Fifth District Court, Juab County.--Hon. T Marioneaux, Judge.

Action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. From a judgment in favor of the plaintiff, the defendant appealed.

AFFIRMED.

Messrs Bennett, Sutherland, Van Cott & Allison for appellant.

Messrs Powers, Straup & Lippman for respondent.

BASKIN, J. MINER, C. J., and BARTCH, J., concur.

OPINION

BASKIN, J.

--The complaint herein alleges that plaintiff was twenty-three years of age November, 1900, and was in defendant's employ and earning $ 2.50 per day as a common miner in defendant's mine, and working on the 1,800 level of the mine. The complaint then alleges "that, in going to and from his said place of work on the 1,800 level of said mine, plaintiff was transported by said defendant through a certain shaft by means of an elevator, more commonly called a 'cage,' which said cage was raised and lowered by means of machinery in charge of an engineer in the employ of said defendant; that in transporting plaintiff as aforesaid to his said work, by means of said cage as aforesaid, it became and was the duty of said defendant to lower the same with care and caution, and at a reasonably safe rate of speed, and keep and maintain said shaft, when plaintiff was being lowered to his said work, free and clear of obstruction, so that said cage could safely descend, and particularly to keep and maintain said shaft free and clear of certain 'chairs' used to rest said cage upon at certain levels of said mine, and to keep said chairs in reasonably safe working order. And it became and was the duty of defendant, before it lowered men into said mine by means of said cage, to raise and lower the said cage, and ascertain if said shaft was clear." The complaint, in substance, further alleged that defendant negligently failed to perform these duties, and that through and by means of such failure the plaintiff, while being lowered on said cage to his place of work by said defendant, was injured, etc. The answer denied the alleged negligence. The jury returned a verdict in favor of the plaintiff for $ 7,000, and judgment for said sum and costs was rendered against the defendant. From this judgment the appeal is taken.

As stated in appellant's brief, "the important question in the case" presented by the exceptions and assignments of error "is whether the plaintiff and Daniel Knotts were fellow-servants." It appears from the evidence that the plaintiff was, and had been for a considerable time immediately before his injury, in the service of the defendant as a common miner on the 1,800-foot level of the mine; that there was a shaft of the defendant's mine of the depth of 1,900 feet, and during the time plaintiff was in defendant's service he had been habitually conducted through said shaft to and from the place where so engaged, on the cage of an elevator which was operated by, and was under the control of, the said Daniel Knotts, an employee of the defendant, styled the "cage rider;" that at various levels of the mine there are chairs, which are so constructed that they can be projected into the shaft to support and steady the cage while being loaded and unloaded at the points where the chairs are located; that the chairs were so weighted that when in proper working order they would, upon the cage being lifted therefrom, fall out of the shaft, and remain there, and leave the passage unobstructed until again projected into the shaft; that Knotts knew for two months before the accident that the chairs on the 800-foot level were out of order, and were liable, as they had done before, during the months they were out of order, to stay in the shaft upon the removal of the cage therefrom, and not fall back, as designed to do; that it was the custom and duty of Knotts to go down the shaft with the cage, and see that the passage was clear, before conducting the employees of the defendant on the cage down to the places in the mine where they were to work, but notwithstanding he knew that the chairs on the 800-foot level were out of order, and liable not to fall out of the shaft, he neglected, on the occasion of the accident in question, to perform that duty, and started to lower the plaintiff and ten other miners at a speed of about 1,900 feet per minute, when the cage struck the chairs at the 800-foot level, and the plaintiff was thereby injured.

1. Appellant's counsel contend that under the facts disclosed by the evidence, and the provisions of section 1343, Revised Statutes 1898, the plaintiff and Daniel Knotts were fellow-servants. Said section provides that all persons engaged in the service of any person, firm, or corporation foreign or domestic, doing business in this State, "and who, while so engaged, are in the same grade of service and are working together at the same time and place and to a common purpose, neither of such persons being intrusted by such employer with any superintendence or control over his fellow-employees, are fellow-servants with each other; provided, that nothing herein contained shall be so construed as to make the employees of such employer fellow-servants with other employees engaged in any other department of service of such employer. Employees who do not come within the provisions of this section shall not be considered fellow-servants." The plaintiff and Knotts were employees of the defendant, and neither was intrusted by their employer with superintendence or control over the other; but in view of the evidence, and the provisions of said section, were they engaged in the same service, and working together at the same time and place, to a common purpose? Knotts was employed in running the elevator, while the occupation of the plaintiff was that of a miner on the 1,800-foot level of the mine. They were not, therefore, engaged in the same grade of service. Knotts' employment was not that of a miner, and he was not engaged in working with the plaintiff on the 1,800-foot level; nor was the plaintiff engaged at work when injured, but was merely being conducted to his place of employment. They were not, therefore, engaged in working together at the same time and place. The purpose which Knotts worked to accomplish was conducting into and out of the mine men and materials, while the plaintiff's work was directed to the purpose of extending the underground workings of the mine, and developing and extracting ore. As, therefore, the labor of each was, at different times and places, directed to the accomplishment of separate results, the plaintiff and Knotts were not, within the meaning of said section of the Revised Statutes, working together at the same time and place to a common purpose. Knotts was conductor of the elevator, and the plaintiff had no more control over him in respect to the management of the elevator than a passenger in a railroad car has over the conductor of a train, nor had he any better means than a passenger to protect himself against the negligent management of said elevator. In the following cases decided by this court, the injuries occurred after the passage of section 1343 of the Revised Statutes of 1898, to-wit: Pool v. Southern P. Co., 20 Utah 210, 58 P. 326; Braegger v. Railway Co., 24 Utah 391, 68 P. 140. In the former case, while a laborer in the car shops of the railroad was under a car upon a side track, and engaged in repairing the same, the foreman in the switch department backed a locomotive against the car which was being so repaired, and injured the laborer; and we held that the laborer and foreman were not fellow-servants. In the latter case, a servant, while engaged, under the direction of the section foreman, in unloading a box car which was standing on a side track, was injured by the engineer of a freight train running some cars against the box car. The trial court, after giving in its charge to the jury said section of the Revised Statutes, added, "If, therefore, you find from the evidence that the plaintiff's injuries, if any, were caused by the negligence of a fellow-servant of his, as above defined to you, the plaintiff can not...

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13 cases
  • Baglin v. Earl-Eagle Mining Co.
    • United States
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    • June 30, 1919
    ... ... 76 P. 345; Houtz v. U. P. , 35 Utah 220, 99 ... P. 997; Herriman Irr. Co. v. Keel , 25 Utah ... 96, 69 P. 719; Jenkins v. Mammoth Mining ... Co. , 24 Utah 513, 68 P. 845; First National ... Bank v. Brown , 20 Utah 85, 57 P. 877; ... France v. S. L. & O. Ry ... ...
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    ... ... 7-12; Gibson v ... Miney, 1 H. B. L. 569; Rankin v. New England, etc., ... Mining Co., 4 Nev. 78; V. & T. R. R. Co. v. Lyon ... Co., 6 Nev. 68; Mutual Life Ins. Co. v. Kelly, ... Chambers v. Emery, 13 Utah 405; Western, etc., ... Soc. v. Desky, 24 Utah 347; Jenkins v. Mammoth M ... Co. 24 Utah 513.) If it be assumed that error was ... committed and yet the ... ...
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    ...Crowe, 3 Utah 26; Rogers v. Railroad, 90 P. 1075; Chambers v. Emery, 13 Utah 405; Western, etc., Soc. v. Desky, 24 Utah 347; Jenkins v. Mammoth Mg. Co., 24 Utah 513; Garr Cranney, 25 Utah 193; Holland v. Railroad, 26 Utah 209; Freed, etc., Co. v. Sorenson, 28 Utah 419.) And if the errors co......
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