McKeever v. Homestake Mining Co.

• Decision Date: 05 April 1898
• Citation: 74 N.W. 1053,10 S.D. 599
• Parties: MCKEEVER, Plaintiff and appellant, v. HOMESTAKE MINING COMPANY, Defendants and respondent.
• Court: South Dakota Supreme Court

10 S.D. 599

74 N.W. 1053

MCKEEVER, Plaintiff and appellant, v. HOMESTAKE MINING COMPANY,

Defendants and respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Lawrence County, SD

Affirmed

U. S. G. Cherry, Frank McLaughlin, Dudley H. Chase

Attorneys for appellant.

G. C. Moody

Attorney for respondent.

Opinion filed April 5, 1898

HANEY. J.

In operating its gold mines near Lead City, defendant made use of a vertical shaft, about 500 feet in depth, divided into what were designated as the north and south compartments. There was a cage in each compartment, which was raised by means of a steam engine at the surface, and lowered by means of a brake near the engine. There were two bells in the hoist, to each of which was attached a wire cord extending the length of the shaft, and passing through each compartment. There was a gong from which a hemp rope extended to either end of the shaft. There were stations in the shaft about 100 feet apart, where the cages were loaded and unloaded. Whenever any person desired a cage brought to any particular station, he would sound the gong according to a well-known code of signals, and the man in charge of the required cage, called a “cage tender,” would signal the engineer and brakeman by means of the wire cord and bell belonging to his compartment. If the signal was given to raise a cage, the brakeman would throw that cage upon the engine, and the engineer would raise it with the engine to the proper station. If the signal was to lower it, the brakeman would release the brake, and permit the cage to descend to the proper station. It was the brakeman’s duty to answer signals, as they were given on the bells, by throwing the proper cage upon the engine, or lowering it, as the case might be; and it was his duty to throw upon the engine or lower a cage when so directed by the engineer. There was an appliance in the hoist which indicated at all times the position of each cage. The rules of the company, posted at each station, allowed no one to ring the signal bells, except cage tenders. January 20, 1893, plaintiff’s husband, in charge of the south cage, went down with a load of lagging timbers to the 400-foot station, where he began taking them off, and depositing them at the station in close proximity to the shaft. When all but two or three had been thus removed, the cage was raised to the 300-foot station, without the knowledge of deceased, who, returning to the shaft from where he had placed the last timber, and not observing the absence of the cage, stepped off to where he supposed the cage was, and, falling to the bottom of the shaft, was instantly killed. No defect in the construction or condition of defendant’s machinery is claimed, and the only negligence alleged in respect to its operation is that Charles Johnson, who was in charge of the engine when the accident occurred, was a negligent, careless, and unskilled engineer, as defendant then, and for a long time prior thereto, well knew, but which was unknown to deceased, and that Johnson caused the accident by negligently raising the cage, from which deceased was unloading timbers, without any signal or request to do so. As deceased and Johnson were co-employees, defendant is not liable for the consequences of the latter’s negligence unless it neglected to use ordinary care in employing him as engineer. Comp. Laws, § 3753. Hence plaintiff should not recover unless her husband’s death was caused, without fault on his part, by Johnson’s negligence in raising the cage without a signal, and defendant was guilty of negligence in retaining Johnson in the position of engineer.

At the close of the testimony, defendant moved the court to direct a verdict in its favor, for reasons, among others, which may be stated as follows:

(1) There is no evidence of negligence on the part of Johnson, the engineer;

(2) there is no evidence of negligence on the part of the defendant in employing Johnson as engineer; and

(3) the uncontradicted evidence proves that the negligence of the deceased contributed to his death. This motion was sustained.

It is the settled law of this state that when the evidence given at the trial, with all inferences that the jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff, so that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant. Wagon Co. v. Matthiessen, 3 Dak. 233, 14 N.W. 107; Knapp v. Bank, 5 Dak. 378, 40 N.W. 587; Peet v. Dakota F&M Ins. Co.,(1891); Haugen v. Chicago, M. & St. P. Ry. Co.,(1892); Randall v. Railroad Co., 3 SCt 322. Would the jury have been justified in finding that Johnson raised the cage without receiving the proper signal? It is fair to infer that deceased, the, only person authorized by the company’s rules to give the signal, did not give it. The bells were directly above the brakeman, about 20 feet from the engineer—in plain sight of the latter, but not visible to the former. The cage was thrown upon the engine by direction of the engineer, who swears positively that he heard and saw the bell of the south compartment...