Johnson v. Silver King Consol. Mining Co. of Utah

• Decision Date: 15 February 1919
• Docket Number: 3270
• Citation: 54 Utah 34,179 P. 61
• Court: Utah Supreme Court
• Parties: JOHNSON v. SILVER KING CONSOL. MINING CO. OF UTAH

179 P. 61

54 Utah 34

JOHNSON v. SILVER KING CONSOL. MINING CO. OF UTAH

No. 3270

Supreme Court of Utah

February 15, 1919

Appeal from the District Court of Salt Lake County, Third District Hon. R. B. Porter, Judge.

Action by Tilta Johnson, as widow of Stive Johnson, and as guardian ad litem of Annie Johnson and others, against Silver King Consolidated Mining Company of Utah.

Judgment of nonsuit. Plaintiff appeals.

REVERSED and REMANDED.

Weber Olson & Lewis, of Salt Lake City, for appellant.

King Straup, Nibley & Leatherwood and Gustin, Gillette & Brayton, all of Salt Lake City, for respondent.

FRICK, J. CORFMAN, C. J., and GIDEON and THURMAN, JJ., concur. WEBER, J., being disqualified, did not participate.

OPINION

FRICK, J.

The plaintiff, Tilta Johnson, as the widow of one Stive Johnson, deceased, and as guardian ad litem of Annie, Henry, Sikra, and Ellen Johnson, minor children of the deceased, brought this action on her own behalf, and on behalf of said minors, to recover damages caused by the death of said Stive Johnson, who, it is alleged in the complaint, was killed through the negligence of the defendant, in whose mine he, at the time of his death, was employed as a minor.

In the complaint, after alleging the place where said deceased was at work, and what he was doing at the time of the accident, and that he, with other employes of the defendant, was at work in a certain tunnel in defendant's mine in which a main track and a switch or side track were laid, on which mine cars were propelled by means of horse power, and after stating that the defendant had negligently failed to provide a safe place for the deceased to work in, the particular acts of negligence are alleged as follows:

"That the defendant carelessly and negligently placed said side track and said main track too near to each other to permit the loaded cars to be drawn forward without the danger of a loaded car catching and interfering with an empty car on the side track, and that on the date herein mentioned, while the said deceased, in the performance of his duties, was standing on the side of the tunnel near said empty cars, the loaded cars were pulled forward on the main track, and, by reason and on account of the said carelessness and negligence of the defendant in placing said tracks too close together, one of the loaded cars interfered with and caught and became fastened to one of the empty cars on the side track, and thereby caused said empty car to be suddenly turned and jerked out of position, and caused one end of said empty car to swing out towards the side of the tunnel, and to strike the deceased, Stive Johnson, and pin his body against the side of said tunnel, and thereby injured him insomuch that he died from said injuries on January 1, 1917."

The defendant filed an answer to said complaint, in which, after admitting the matters of inducement, and that the deceased was in its employ, and that he was injured, it denied all acts of negligence. It also set forth as affirmative defenses assumed risk, contributory negligence, and that the deceased was injured through the negligence of a fellow servant.

In view that the affirmative defenses are not involved on this appeal, no further reference will be made thereto.

A jury was duly impaneled to try the case, and, after the plaintiffs had produced their evidence and rested, the defendant moved for a nonsuit, which was based upon all the defenses set forth in the answer. The only grounds of the motion which are relevant here, however, are that the evidence does not establish any negligence on the part of the defendant which was the proximate cause of the injury, and that there is no evidence in support of the particular acts of negligence alleged in the complaint, all of which acts we have hereinbefore set forth. The court sustained the motion, and judgment of dismissal was duly entered, from which this appeal is prosecuted.

After the motion for a nonsuit had been granted, plaintiffs, for the reasons hereinafter stated, asked leave to reopen the case to introduce further evidence. The court refused to reopen the case, and plaintiffs excepted to the ruling.

The errors assigned are: (1) That the court erred in granting the motion for a nonsuit; and (2) that it erred in refusing to reopen the case and permit the plaintiffs to introduce additional evidence.

At this point we prefer to insert the following rough sketch showing the main track, the switch track, and the surroundings at the place of the accident.

[SEE SKETCH IN ORIGINAL]

The evidence produced by the plaintiffs tended to establish the following facts:

The defendant was constructing a tunnel in its mine, which had been driven into the mountain a distance of about 2,000 feet at the time of the accident. On the morning of the accident at about eight o'clock, the deceased, with six or seven other employes, went to work in said tunnel. The face of the tunnel it at the point marked "F" on the sketch, where three machine men were engaged in drilling blast holes into the face. The main track referred to is marked "B," and the side track is marked "A." The muck or loose rock and dirt which was blasted out of the face of the tunnel was being loaded by the muckers, who were working in the open space in the rear of the point marked "F," and beyond the tracks, into the mine cars, which were used to take the muck to the surface through said tunnel. The track "B" was a permanent track laid on wooden ties, which were laid on the bottom of the tunnel and ballasted. That track was extended as the tunnel proceeded, which was at the rate of about ten linear feet every twenty-four hours. The track "A" was used as a side track, the rails of which were fastened together with three-inch iron strips placed certain distances apart, which were riveted to the bottom or under side of the rails, and after so fastened together the rails were laid on the bottom of the tunnel, and moved forward toward its face from time to time as the work progressed. The testimony is to the effect that the side track was between twenty and thirty feet in length, and was connected with the main track by means of a switch marked "S" on the sketch. The switch was fastened to the ends of the two rails constituting the side track, so that the loose ends of the switch could be carried over and laid onto the rails of the main track as indicated on the sketch. The cars used in the mine were operated as follows: A driver, called the "skinner" by the witnesses, would bring up about six empty cars into the mine with a horse, and just before he would arrive at the point of the switch he would unhitch his horse from the empty cars, and by hand shunt them over the switch onto the side track "A." At the time he would arrive with a string of six empty cars that number of cars would usually be loaded and be standing on the main track "B." The skinner would then hitch his horse to the string of loaded cars, and after throwing the switch back, so as to leave it approximately as indicated by the broken lines on the sketch, he would proceed to take the loaded cars to the surface, unload them, and return with them as before stated. While the skinner was taking a string of loaded cars to the surface, the muckers, who were working in the rear of the point "F," would load the empty cars with the muck, and, when loaded, would turn and shunt them on what is called a sheet-iron turntable onto the main track, where they would be hitched onto by the skinner, as before stated. The distance between the rails on both the main track and on the side track was eighteen inches; the distance between the inner rails of the main track and the side track was by one witness said to be eight and one-half or nine inches, and by another eleven to twelve inches; and the distance from the outer rails of the main track and the side track to the walls of the tunnel, indicated by the two outer lines on the plat, was stated to be from thirteen to fourteen inches, while the width of the tunnel was stated to be "between six and seven feet." On cross-examination the witness said that the "average" width was perhaps "between six and one-half and seven feet." The tread, or top, of the rails was three-fourths of an inch wide. The cars were twenty-eight inches wide. A few of them were stated as being an inch and one-half wider than that. The testimony is that they were forty-two inches high and forty-nine to fifty-one inches in length, and weighed about 700 pounds when empty. On the morning of the accident the machinemen and muckers were engaged at and near the face of the tunnel, as before stated. The deceased was working at or near the point marked "X" on the sketch, digging a drain ditch. In digging the ditch he would shove an empty car down over the switch onto the main track, and when loaded shunt it back--that is toward the face of the tunnel on the main track beyond the switch--where it would become the head car of the train of loaded cars going out. On the morning of the accident, and just before it occurred, the skinner had brought in a string of empty cars and had shoved them over the switch onto the side track. The switch was then turned from the main track to permit the loaded cars to pass by on that track. The evidence is conclusive that the loaded cars could not pass over the main track until after the switch was turned therefrom. As the skinner would proceed to take a train of loaded cars past the switch and the point where the deceased was working one of the empty cars was pushed forward on the side track, and was forced onto or over the end of the switch, and the end of the car was turned toward the side of the tunnel, and struck the deceased and forced him against the wall of the tunnel, and...