De Lopez v. Central Arizona Mining Co.

• Decision Date: 01 January 1883
• Parties: MARIA LOPEZ DE LOPEZ, Administratrix, Respondent, v. CENTRAL ARIZONA MINING CO., Appellant
• Court: Arizona Supreme Court

2 P. 748

1 Ariz. 464

MARIA LOPEZ DE LOPEZ, Administratrix, Respondent, v. CENTRAL ARIZONA MINING CO., Appellant

Supreme Court of Arizona

January 1, 1883

APPEAL from the district court of the second judicial district county of Maricopa. The appeal is from a judgment in favor of the plaintiff, in an action to recover for the death of her husband by reason of the defendant's negligence, and from an order denying the defendant a new trial. The further facts appear in the opinion.

The judgment and order denying a new trial must be reversed, and the cause remanded for a new trial, and it has been so ordered.

Tweed &amp Hancock and Caleb Dorsey, for the Appellant.

On the twenty-first day of June, A. D. 1881, and for a long time previous, Florence Lopez was, and had been, in the employ of the defendant corporation, as a miner in the Vulture mine and had worked in said mine for seven years. On the twenty-first day of June, A. D. 1881, he was killed by some rock falling on him while he was at work in the mine. His work was to remove the rock after it had been blasted down from above by other miners. The place in which he worked was at the bottom of an open cut, which was about a hundred and fifty feet wide on the top, and about fifty or sixty feet deep. The rock was blasted down from the side of the open cut near the surface of the ground, and Florence Lopez was at work in the bottom of the open cut, removing the rock through a chute to a lower tunnel, as it was blasted down by other miners from above. It was the custom of the mine for the blaster to give notice to the men below, to get out of the way just before he fired off a blast, and to stay out of the way until all the loose rock was pried down which was made loose by the blast. Such notice was given at the time Lopez was killed.

Florence Lopez knew that it was dangerous to be there when the loose rock had not been pried down. In fact he claimed to believe and know that the place was a dangerous place to work in under any circumstances, even when no blasting was going on. He had been working in the mine for six or seven years, and had every opportunity to know if it was a dangerous place to work in; and the rock which fell and caused his death was in full view of the place where he was at work, and could be easily seen by him.

The case was tried by a jury, which rendered a verdict of three thousand dollars for plaintiff. Defendant made a motion for a new trial, which was overruled; and defendant appealed to this court from the judgment and order overruling defendant's motion for a new trial.

1. The court below erred in allowing any evidence to be given under the complaint on the part of the plaintiff over the objection of defendant's attorneys. The complaint had been demurred to on the ground that it did not state facts sufficient to constitute a cause of action, which demurrer was overruled by the court. By answering the complaint the defendant did not waive its right to object to the complaint on the grounds of the jurisdiction of the court, nor that the complaint does not state facts sufficient to constitute a cause of action. These objections can be made at any time, and at any stage of the proceedings.

The main question then is, Does the complaint state facts sufficient to constitute a cause of action? If it does not then it is clear that the complaint is a nullity, and no evidence should have been given, on the part of the plaintiff, over the objections of defendant's attorneys. We contend that the complaint does not state facts sufficient to constitute a cause of action, and that the evidence should not have been allowed.

The complaint states that for a long time prior to the death of Lopez, the defendant had endangered the lives of the miners working in its mine by not having proper and sufficient supports and pillars in the mine to prevent its tunnels and excavations from caving in. It would appear from this allegation in the complaint that the place was dangerous to work in, for the want of pillars and supports, and that the danger was apparent to Lopez, and to every miner working in the mine; for it had been in that condition for a long time previous to the death of Lopez. Under such a statement of facts the law presumes that Lopez was guilty of negligence or he would not have worked there; and, in order to rebut this presumption, it makes it incumbent upon him also to state in his complaint that the dangerous condition of the mine was not known to him, and could not with reasonable care and diligence have been discovered by him; and also to state that he was free from negligence, and acted with ordinary prudence in avoiding the danger. No such averments are in the complaint, and without them the complaint does not state facts sufficient to constitute a cause of action.

Where the negligence of the plaintiff caused or contributed to the injury received, the defendant is not liable, as will be seen from the authorities hereafter cited.

The courts in various states of the Union have been very much divided on the subject whether the plaintiff should state in his complaint that he acted with due and ordinary care to avoid the danger, or that the danger was unknown to him, or whether such matters are matters of defense, and should be set up in the defendant's answer. It has been decided and settled in Massachusetts, Maine, Iowa, Illinois, Connecticut, Mississippi, Michigan, and Indiana, that in order to make out a prima facie case, the plaintiff must not only show negligence on the part of defendant, but he must also show that he himself was in the exercise of due care in respect to the occurrence from which the injury arose. 2 Thompson on Negligence, 1176, 1178, and notes, where all the cases are collated from each of the states above named. In Pennsylvania, Missouri, Wisconsin, Kentucky, Maryland, Alabama, Kansas, Minnesota, and New Jersey, it has been decided that the negligence of the plaintiff contributing to the injury complained of is a matter of defense, and that ordinarily the burden of proof is on the defendant. (The same authorities last above cited.)

The authorities on this subject are so numerous and apparently so conflicting that I have deemed it unnecessary to cite them in detail and comment upon each case separately, but will content myself with referring the court to the authors who have collated all of said authorities, and who have stated what ought to be the rule which should be followed in such cases. In 2 Thompson on Negligence, 1178, the author says: "On an examination of the authorities it will be found that where the courts decided that the burden of proof is on the plaintiff to show due care on his part, they have also held that this proof need not be direct, but may be inferred from the circumstances attending the occurrences causing the injury; and in those states where the doctrine obtains that contributory negligence on the part of the plaintiff is a matter of defense, if his case raises an inference of negligence on his part, he must in order to make out a prima facie case prove that he was guilty of no negligence."

Judge Lyons, in a case decided by the supreme court of Wisconsin, has very well stated the rule: "We hold, that in the absence of any evidence tending to show that the plaintiff is chargeable with negligence contributing to the injury of which he complains, the presumption of law is that he is free from such negligence, and the burden is upon the defendant to prove such contributory fault, if the same is relied upon as a defense. The rule here adopted does not apply to a case in which the proofs on the part of the plaintiff show or tend to show his contributory negligence. If such negligence conclusively appears, the court will nonsuit the plaintiff, or order the jury to find for the defendant." Shearman & Redfield on Negligence, sec. 43, and note, is to the same effect. He approvingly quotes the rule laid down by Judge Denio, in Johnson v. Hudson River Railroad Company, 20 N.Y. 65, 75 Am. Dec. 375, and note, which is as follows: "I am of opinion that it is not a rule of law of universal application, that the plaintiff must prove affirmatively that his own conduct on the occasion of the injury was cautious and prudent. The onus probandi in this, as in most other cases, depends upon the position of the affair as it stands upon the undisputed facts. Thus, if a carriage be driven furiously through a crowded thoroughfare, and a person is run over, he would not be obliged to prove that he was cautious and attentive, and he might recover, though there were no witnesses of his actual conduct. The natural instinct of self-preservation would stand in the place of positive evidence, and the dangerous tendency of defendant's conduct would create so strong a probability that the injury happened through his fault, that no other evidence would be required; but if one make an excavation or lay an obstruction in the highway, which may or may not be the occasion of an accident to a traveler, it would be reasonable to require a party seeking damages for an injury to give general evidence that he was traveling with ordinary moderation and care. The obligation to give such evidence would be greater or less, as the impediment was more or less dangerous."

This rule, as stated by the New York court, was approved by the supreme court of the United States in the case of Railroad Company v. Gladmon, 15 Wall. 406; see also Shearman & Redfield on Negligence, secs. 44, 45. In section 45 the author says: "If it appears that any defects in the things or faults in the persons employed by plaintiff contributed to his injury, the burden is clearly upon him to show not only that he did not know or suppose that such defects or faults existed, but also...