Linderberg v. Crescent Min. Co.

• Decision Date: 22 June 1893
• Court: Utah Supreme Court
• Parties: JOHN G. LINDERBERG, RESPONDENT, v. CRESCENT MINING COMPANY, APPELLANT

33 P. 692

9 Utah 163

JOHN G. LINDERBERG, RESPONDENT, v. CRESCENT MINING COMPANY, APPELLANT

Supreme Court of Utah

June 22, 1893

APPEAL from a judgment of the district court of the third district and from an order refusing a new trial, Hon. Thomas J Anderson, judge. The opinion states the facts.

Affirmed.

Messrs Zane and Putnam, for the appellant.

The testimony of the making of the station and the drifting back from the manway to the tunnel was incompetent even though it tended to show what was the situation after the accident. Railroad Co. v. Hawthorne, 144 U.S. 202; Corcoran v. Peekskill, 108 N.Y. 151; Alcorn v Railway Co., 16 S.W. 229; Railway Co. v. Jones, 14 S.W. 309; Railway Co. v. Compton, 75 Tex. 667; Hodge v. Percival, 132 Ill. 53; Lang v. Sawyer, 44 N.W. 1095; Hudson v. Railroad Co., 59 Iowa 581; Nalley v. Carpet Co., 51 Conn. 524; Railroad Co. v. Clem, 123 Ind. 15; Railway Co. v. Weaver, 35 Kan. 412.

The admission or declaration of the miner as to the cause of the accident was clearly incompetent, because not a part of the res gestae. Forwarding Co. v. Insurance Co., 29 P. Rep. 826, 8 Utah 41, in the Supreme Court of Utah; Railroad Co. v. O'Brien, 119 U.S. 99; Packet Co. v. Clough, 20 Wall. 528; Railroad Co. v. Hawk, 72 Ala. 112; Sullivan v. Railroad Co., 12 Ore. 392; Tennis v. Railway Co., (Kan.) 25 P. Rep. 876; Hawker v. Railway Co., 15 W.Va. 628; Adams v. Railway Co., 74 Mo. 553; Railway Co. v. Hunter, 33 Ind. 335; Luby v. Railway Co., 17 N.Y. 131; Field v. State, 57 Miss. 474; Durkee v. Railroad Co., 69 Cal. 533; Waldele v. Railway Co., 95 N.Y. 274; Aldridge v. Furnace Co., 78 Mo. 559. The fact that the statement was made by a laborer to the superior officer, even in the nature of a report, makes no difference. Carrol v. Railroad Co., 82 Ga. 452. The case of Keysor v. Railroad Co., 66 Mich. 390, decides nothing, for even the reporter of the court could not discover what the opinion meant.

Messrs. Brown and Henderson, for the respondent.

BARTCH, J. MINER, J., concurred.

OPINION

BARTCH, J.

In this case the plaintiff seeks to recover damages for personal injury received while in the employ of the defendant company. He claims that he was employed as a laborer and carman; that, as such, it was no part of his duty to go into the winzes, raises, or stopes; that the foreman of the defendant ordered him to go into a raise, and clean out some material, which he did; that the raise was insufficiently timbered, but he was not aware of its unsafe condition, not having been acquainted with the locality; and that, through the negligence of the defendant in having the raise insufficiently timbered, and without fault of the plaintiff, the ground above him caved and fell upon him, knocking him down the manway, and broke his leg, which was afterwards amputated, because of the injury. The jury returned a verdict in favor of the plaintiff, and assessed his damages in the sum of $ 2,500. The defendant regularly appealed to this court.

It appears from the evidence that the plaintiff was employed by the defendant, in one of its tunnels, as a common laborer or carman; that in the tunnel in which the plaintiff was employed, there was an upraise, which at the time of the accident extended upward at an angle of about 75 degrees, the distance of about 150 feet, and was still being extended; that the raise consisted of two compartments, separated by a lumber partition, one of which compartments was used as a manway, and the other for shooting ore and waste material down to the tunnel level; that it was the duty of the plaintiff to keep the chute clean and load cars; that the raise was timbered with lagging of half-round split timbers, running up and down, and on the hanging wall it was put reasonably close together, but on the foot wall the lagging was so placed as to only cover about two-thirds of the surface; that, before the accident, a miner in the chute ordered the plaintiff to come up the manway to assist him in fixing the chute; that he hesitated, and asked the foreman if he must go, whereupon the foreman directed him to go; that he then went up about 30 feet, and began to assist the miner, when some loose dirt came down, putting out his light, and a piece of rock struck him, knocking him off from the ladder, and, falling to the bottom of the manway, he received the injury complained of; that at this time the defendant was running a tunnel to connect with this upraise at a point above where the plaintiff and miner were at work, the face of the tunnel being within 20 feet, and so near that blasting might cause disturbance in the upraise; that no precaution had been taken to guard against this, and the plaintiff was not aware of the approach of the tunnel, nor of any unsafe condition of the lagging in the upraise; that the accident happened about the time the miners quit work; that it is usual for them to put in blasts just before quitting time; and that plaintiff is a man of quite limited knowledge and understanding.

A part of the plaintiff's testimony at the trial, as disclosed by the abstract, is as follows: "It was just about quitting time; men coming off the shift. The boss said, 'What did you shoot before time for?' One miner spoke up and said, 'We didn't shoot before time.' This was a few minutes after the accident. Then they put me in a sleigh, and took me down to Park City. They took me to the hotel, and laid me on the office floor. The foreman came in, and said, 'How did this happen?' The miner who went with me said, 'Rock came down the raise, and struck him.' This conversation took place when I got to Park City; within 25 minutes, I guess. It is three miles, I think, there the short way." That part of the conversation which occurred at Park City was admitted, over the objection of counsel for the appellant that it was not a part of the res gestae. Other evidence tends to show that it was 45 minutes after the accident occurred when this conversation took place.

Counsel for appellant insist that this evidence was incompetent and immaterial. It was the duty of the defendant to use reasonable care and prudence in timbering and working its mine, and, if it failed to do its duty in this respect, then it must be held liable for injury to its employes. If the upraise was so timbered as to allow rock and other material to fall through the lagging, and down the manway, then the evidence complained of would have a tendency to show that fact, and also a want of due care and prudence on the part of the defendant, and would be material.

To entitle the declaration of an employe to admission as evidence against his employer, they must be so connected, as to time and circumstances, as to form a part of the main fact over which the controversy has arisen, and to preclude the probability of design on the part of the person making them. No rule has yet been established defining the precise length of time within which such declarations must be made after the accident to become a part of the res gestae. If they were to be excluded because of not being exactly contemporaneous with the main fact, few cases of accidents would arise in which they would be admitted; for, in such cases, the declarations, which illustrate the cause and manner of the happening of the accident, are nearly always made after it has happened. That the happening of the accident and the declaration must be directly connected is evident. The declaration must have been caused by and grown out of the fact, but the lapse of time that may intervene and still make the declaration a part of the res gestae will always be a matter of consideration in this class of cases. It must always depend on the circumstances of each particular case. A declaration may be made immediately upon the happening of an accident, and yet in such manner and under such circumstances as to exclude it; as where it is made by an employe to a person who is a stranger to the business of the employer, and in no...