Linden v. Anchor Mining Co.

• Decision Date: 27 June 1899
• Citation: 58 P. 355,20 Utah 134
• Court: Utah Supreme Court
• Parties: MARGARET LINDEN, ADMINISTRATRIX OF THE ESTATE OF JAMES LINDEN, DECEASED, PLAINTIFF AND APPELLANT v. THE ANCHOR MINING COMPANY, A CORPORATION, DEFENDANT AND RESPONDENT

58 P. 355

20 Utah 134

MARGARET LINDEN, ADMINISTRATRIX OF THE ESTATE OF JAMES LINDEN, DECEASED, PLAINTIFF AND APPELLANT v. THE ANCHOR MINING COMPANY, A CORPORATION, DEFENDANT AND RESPONDENT

Supreme Court of Utah

June 27, 1899

Appeal from the Third District Court, Summit County, Hon. A. G. Norrel. Judge.

Action by Margaret Linden as administratrix to recover damages for the death of her husband, who was fatally injured while in the employ of defendant company. From a judgment for defendant, plaintiff appeals.

Reversed.

Messrs Powers, Straup and Lippman, for appellant.

It is the master's duty to exercise reasonable care to provide his servant a reasonably safe place in which to work. the performance of this duty cannot be effected by the simple giving of an order--by its execution being entrusted to another. Until the agent thus selected and empowered in fact acts up to the limit of the duty of his master to act, the master's duty is not done. The master's duty requires performance. He may, at his option perform in person or delegate performance to another. In either case reasonable care must be exercised in the doing of the act required to be done by the master. McElligott v. Randolph, 29 Am St. Rep., 181, and cases there cited. Wood, Master and Servant, p. 871.

This duty the master cannot delegate so as to be relieved from liability. Carter v. Oliver Oil Co., 27 Am. St Rep., 815; Ell v. N. P. R. R., 26 Am. St. Rep., 621 and note; Higgins v. Williams, 114 Cal. 176; Wheeler v. Wason Mfg. Co., 135 Mass. 294; A. T. & F. R. R. v. Seeley, 37 P. 104; Lewis v. Seifert, 2 Am. St. Rep., 631; Anderson v. Minn. Co. (Utah), 50 P. 815; Bishop Non-Contract Law, Sec. 648.

The court erred in giving paragraph III. of its charge. In said charge the court cast the burden of proof on plaintiff to prove among other things that the deceased "did not know it was unsafe and could not have known it by the exercise of reasonable care for his own safety;" and that the deceased was killed "without any fault on his part, and while he was taking due and proper care for his own safety." The said paragraph does not correctly state the law. It cannot longer be an open question in this State that in cases of negligence occasioning personal injury or death, the plaintiff is not required to prove in the first instance his freedom of negligence or that of his intestate. So repeatedly has it been declared that contributory negligence is matter of defense and the burden of proving it is upon the defendant, that the citation of authorities should not be necessary. Anderson v. Ogden Ry. and Depot Co., 8 Utah 128; Smith v. Occidental, etc. Steamship Co., 99 Cal. 462; Daly v. Hinz, 113 Cal. 366; Nelson v. City Helena, 16 Mont. 21 (39 P. 905); MacDougall v. Con. R. R. Co., 63 Cal. 431; Bowers v. R. R., 4 Utah 224.

Deceased's knowledge of the chute and his means of knowledge are matters of defense and the burden is upon respondent to prove such defense. Especially when alleged in the answer with such particularity as was done. Alexander v. C. L. & M. Co., 104 Cal. 532. This instruction was prejudicial. Bjorman v. Fort Bragg Redwood Co., 104 Cal. 626.

The charge of the court limited the jury as elements of damage to only the age of deceased, his physical condition and his capacity to earn wages. The court excluded from the jury all questions of probable length of life; his mental capacity; and his habits, a most important element of damage; and loss of comfort, society, and companionship, all of which are proper elements of damages. Wells v. Railway Co., 7 Utah 482; Hyde v. Railway Co., 7 Utah 356; Pool v. Railway Co., 7 Utah 303; McHugh v. Schlosser, 39 Am. St. Rep., 699; Pepper v. Ry. Co., 105 Cal. 389; Walker v. McNeil, 50 P. 518 (17 Wash. 582); Woodward v. Ry. Co., 4 Colo.; Pierce v. Conners, 37 P. 721; Beeson v. Green Mountain Manf. Co., 57 Cal. 20; Cook v. Clay Street Ry. Co., 60 Cal. 604; Cleary v. City R. R., 76 Cal. 240; Munro v. Dredging Co., 84 Cal. 515; Blackwell v. Moorman and Co., 111 N.C. 151, (17 L.R.A. 729); Coley v. Statesville, 121 N.C. 301; Strother v. R. R., 25 S.E. 272; Baltimore & P. R. R. Co. v. Mackey, 157 U.S. 72 (39 L.Ed. 624); St. Louis, etc. R. R. v. Moddoy, 21 S.W. 472; Skottowe v. R. R., 30 P. 222; Mugg v. R. R., 31 N.E. 564.

Messrs. Brown & Henderson, for respondent.

When an employee has knowledge of a situation which is dangerous if not properly guarded against and forgets it, and, by reason of such forgetting, some accident happens to him, he cannot recover. Wallace v. Central Vermont R. R. Company, 63 Hun. 632, 635; Black on Cont. Neg., p. 40; Lake Shore R. R. Company v. McCormick, 74 Ind. 440; Bruker v. Covington, 69 Ind. 34, 35 Am. R. 202; Brossman v. R. R. Company, 133 Pa. 490; Baltimore, etc., R. R. Co. v. Whitacre, 35 Ohio State 627; Gilbert v. Guild, 144 Mass. 601; Sullivan v. India Manufacturing Co., 113 Mass. 398; Sanborn v. M. F. T. Co., 70 Cal. 261.

The court did not charge, as alleged, that the burden of proof was upon the plaintiff to show contributory negligence, but upon the contrary, that the burden of proof was upon the defendant, in which he says, "before you find the deceased guilty of contributory negligence, you must be satisfied by a preponderance of the evidence that he failed to observe that degree of care and caution that an ordinary prudent person, engaged in the same business and under like circumstances, would have used." It must be remembered, however, that the rule requiring the burden of the proof to contributory negligence to be upon defendant, only applies where the evidence on the part of the plaintiff does not disclose it. Where the evidence on the part of the plaintiff does disclose contributory negligence (and it does in this case), then the plaintiff cannot recover as a matter of law, and the burden is not changed to the defendant. Bowers v. R. R. Co., 4 Utah 224; Smith v. Occidental Steamship Co., 99 Cal. 462; McDougal v. Con. R. R. Co., 63 Cal. 431.

I purposely cite the cases referred to by counsel himself.

The whole subject is carefully explained in Baltimore & P. R. R. Co. v. Whitacre, 35 Ohio St. 627.

McCARTY, District Judge, delivered the opinion of the court. BARTCH, C. J. and BASKIN, J., concur.

OPINION

McCARTY, District Judge

STATEMENT OF FACTS.

Margaret Linden brought this action as administratrix to recover damages for the death of her husband, James Linden, who was fatally injured in the employ of and while at work for defendant in its mine.

The complaint in substance alleges: That on October 11th, 1892, the date of the alleged accident, and for a long time prior thereto, the defendant in operating its mine used a certain chute which was located in the middle of one of the car tracks in the mine. That at the time of the accident and for a long time prior thereto, defendant knowingly, negligently, and carelessly left said chute unguarded, unprotected, and without any lights or signals or warnings of danger. That James Linden while engaged in the employment of his duties and while passing along said track not knowing of the existence of or location of said chute, fell and was thrown into said chute from which he sustained severe internal injuries, and from which injuries he thereafter, on October 18, 1892, died. The answer denies the allegations of the complaint charging negligence, and alleges contributory negligence on the part of the defendant, and that he knew of the existence and location of the chute. The facts were submitted to the jury who found for defendant, no cause of action. Plaintiff appeals.

It appears from the record that decedent was at the time of the accident, and for eighteen months immediately prior thereto had been in the employment of the defendant as a miner, and about a year before he was injured, built the chute mentioned in the complaint. The opening of the chute was in the middle of a car track, and was used to convey ore and waste material taken from a stope in the mine where decedent worked, to the level below. The rails of the track mentioned were about sixteen inches apart and were laid between the timbers of the mine, which timbers were about four and one-half feet apart. The drift or tunnel was about five feet wide at the mouth of the chute. The opening of the chute was about one foot one way and three and one-half feet the other. Soon after the chute was constructed a covering was provided for it by defendant to prevent accidents to its employees when the chute was not in use. It was not practicable to use the covering when the chute was in use, as ores and waste material were dumped into it every few minutes. There was an air shaft connecting the stope with the tunnel level above, through which shaft the decedent went to and returned from his work. There is a conflict in the testimony as to the length of time decedent had been at work in the stope immediately preceding the accident. One of the plaintiff's witnesses who worked in the stope and removed the ores and material extracted by decedent testified that the decedent James Linden had worked in the stope referred to only a few days prior to the accident.

Defendant's witnesses testified that he had worked there a month or six weeks before the accident. During the time he worked in the stope he was compelled to pass along the track mentioned and by and over the chute four times each day. And in addition to these regular trips he frequently passed the chute when going for and returning with tools. He worked somewhere from twenty-five to forty feet from the chute, and from eight to fourteen feet above it. He was an experienced and skilled miner, and his work consisted of drilling, blasting and breaking down ore and waste material in the stope. Car men removed the...