Miller v. Bullion-Beck & C. Min. Co.

• Decision Date: 11 November 1898
• Citation: 55 P. 58,18 Utah 358
• Parties: JULIUS MILLER, RESPONDENT v. BULLION-BECK & CHAMPION MINING COMPANY, A CORPORATION, APPELLANT
• Court: Utah Supreme Court

55 P. 58

18 Utah 358

JULIUS MILLER, RESPONDENT v. BULLION-BECK & CHAMPION MINING COMPANY, A CORPORATION, APPELLANT

Supreme Court of Utah

November 11, 1898

Appeal from the District Court Juab County, Hon. E. V. Higgins Judge.

Action by plaintiff against defendant for damages for personal injuries alleged to have been caused through the negligence of the defendant company. From a judgment for plaintiff defendant appeals.

Reversed.

W. C Hall, Esq., and Messrs. Bennett, Harkness, Howat, Bradley & Richards, for appellant.

This case is one of the clearest illustrations either of an assumed risk or an entire absence of negligence that we have been able to find. The court erred in denying defendant's motion for a non suit. Fowler v. P. V. Coal Co., 52 P. 396; McGlynn v. Brodie, 31 Cal. 377; Butte v. Coal Co., 14 Utah 282; Cook v. Mining Co., 12 Utah 57; Bunnell v. Railway Co., 13 Utah 314; Bunt v. Mining Co., 11 Sawy., 178, 24 F. 847; same case, 138 U.S. 483; Kilroy v. Foss, 161 Mass. 138; Coal Co. v. Muir, 20 Colo. 320; Naylor v. Railway Co., 53 Wis. 661.

A promise to repair after the completion of certain work does not relieve the servant of the assumption of the risk until such time has expired. Standard Oil Co. v. Helmuck, 47 N. E., 14; Paule v. Florence Mining Co., 80 Wis. 354.

Where the danger is imminent, the promise does not excuse the servant. 2 Bailey's Per. Inj. relating to M. & S., Sec. 3117; Erdman v. Illinois Steel Co., 69 N. W., 993; R. R. Co. v. Spear, 44 Mich. 169; Anderson v. Daly, 50 P. 818.

Plaintiff was not entitled to introduce evidence of the inebriety of the foreman unless the same was connected with the injury to the plaintiff. Kingston v. Ft. Wayne & E. Ry. Co., 70 N. W., 315; Williams v. Edmunds, 75 Mich. 92; same case, 42 N. W., 534; Fahey v. Crotty, 63 Mich. 383; same case, 29 N. W., 876. See also: Pokreifka v. Mackurat, 91 Mich. 399; Klein v. Bayer, 81 Mich. 234; Culley v. Walkeen, 80 Mich. 443.

In many cases it has been held error to admit testimony of habits of intoxication where it is not shown that such habits had anything to do with the accident. Ward v. R. R. Co., 55 N. W., 771.

F. H. Holzheimer, Esq., and Messrs. Powers, Straup & Lippman, for respondent.

The rule of assumed risk does not apply where the master by leading on the servant or co-ercing him into danger or in some other way directly contributes to the injury. Chicago Drop Forge Co. v. Van Dam, 149 Ills. 337; McKee v. Tourtellotte, 167 Mass. 69; Schlacker v. Ashland Mining Co., 50 N.W. 839; Parker v. R. R., 48 S.C. 364.

Whether he acted recklessly in obeying his master's orders, or whether he acted as a reasonably prudent man would act, are questions of fact to be determined by the jury. Illinois Steel Co. v. Schymanowski, 162 Ills. 447; Chicago Brick Co. v. Sobkowiak, 38 Ill.App. 531.

Respondent had a right to rely on the superior knowledge of his master and yield his judgment and obedience to that of his master. Harrison v. Ry. Co., 7 Utah, 523; Stephens v. Hannibal, etc. R. R. Co., 9 Am. St. 336; 2 Thompson on Neg., 975; Keegan v. Kavanaugh, 62 Mo. 230; Faren v. Sellers & Co., (La.) 4 Am. St. 256; Iron Co. v. Erickson, 39 Mich. 492; McGowan v. R. R., 61 Mo. 532; Jackson v. R. R. Co., 77 Ga. 82.

The master and servant do not stand upon an equal footing even when they have equal knowledge of the danger. Shortel v. St. Joseph, 104 Mo. 144; Ballard v. Ry. Co., 51 Mo.App. 453; Foges v. Ry. Co., 50 Mo.App. 250.

Plaintiff's knowledge under the circumstances of this case but raised a question for the jury. Schroeder v. R. R., 108 Mo. 323; Miller v. U. P., 12 F. 600; Norfolk v. R. R., 24 L. R. A. 717; Dumas v. Stone, 25 A. 1097; Nadam v. Lumber Co., 43 N.W. 1135; Schlitz v. Brewing Co., 59 N.W. 531; R. R. Co. v. Duffield, 47 Am. Rep. 319.

BARTCH, J. ZANE, C. J. and MINER, J., concur.

OPINION

BARTCH, J.

This action was brought to recover damages for personal injuries, alleged to have been caused through the negligence of the defendant company. At the trial the jury returned a verdict in favor of the plaintiff for the sum of $ 6,000. Judgment was then entered for that sum, and thereupon the defendant appealed.

The appellant insists, inter alia, that the court erred in permitting the witness Kirby, over its objection, that it was immaterial, irrelevant and incompetent, to answer the question: "Do you know whether he was a drinking man?" This question referred to one J. W. Roundy, who was foreman of appellant's mine, when the accident, which caused the injury complained of, happened. Other inquiries of like character were permitted, against objection, and evidence adduced to show that Roundy was an inebriate. This evidence was so admitted while the plaintiff was attempting to establish a prima facie case against the defendant. Roundy had not yet been sworn as a witness in the case, and the evidence was not offered for the purpose of affecting his credibility as a witness, but for that of establishing negligence on the part of the defendant. Nor does it appear that the accident was the result of any drinking habits of Roundy, or that he was in any manner connected with the occurrence, or that any act of his contributed to the injury.

However reprehensible habits of inebriety may be, on the part of a person who has charge of a mine, the operations of which are always attended with more or less danger to the workmen, such habits cannot render the employer liable for an injury sustained by an employe when they are not the proximate cause of the injury. It follows that, where, as in the case at bar, the intoxication of the foreman is in no way connected with the accident which resulted in the injury complained of, evidence of such intoxication is inadmissible to show negligence on the part of the employer. The fact that it was alleged in the complaint that the defendant "negligently and carelessly had in its service an incompetent, careless, negligent, and unfit foreman, who negligently and carelessly, and in an unskillful manner directed and controlled the workings" of said mine where the plaintiff was at work, does not entitle the plaintiff to introduce evidence which in no way shows that any act or negligence of the foreman contributed to the injury, or connects the inebriety of the foreman with the occurrence. Even though the appellant has in its employ a negligent and careless foreman, the company is not liable for his careless acts, unless such acts are the proximate cause of an injury, and, on the other hand, the company is liable for the careless acts of its agent, however prudent and cautious he generally may be.

This is not a case of an injury caused by the act of a fellow-servant, where an allegation of negligence, in the employment by, or retention in the service of the master, is necessary, to rebut the assumption of the risk of the carelessness of the fellow-servant. The allegation, therefore, served no useful purpose in the complaint, and doubtless was misleading to the court and jury, and the admission of the objectionable evidence in support of it, when there was no testimony tending to show that the foreman was intoxicated on the day of the injury, or that his intoxication contributed thereto, or that any carelessness or inebriety on his part had anything to do with the accident, must be regarded as prejudicial error. Kingston v. Ft. Wayne & E. Ry. Co., 70 N.W. 315; Carr v. West End Street Ry., 163 Mass. 360, 40 N.E. 185; Williams v. Edmunds, 75 Mich. 92, 42 N.W. 534.

The appellant also insists that the court erred in refusing its request to charge the jury, without modification, as follows "Though you may find from the evidence that the stope in question was an unsafe and improper place for the plaintiff to work, if you further find that the plaintiff was a competent and experienced miner, and knew, or by the use of reasonable diligence or precaution should have known, of the dangerous and unsafe condition of said place, then I charge you that the plaintiff assumed the risk of such dangerous and unsafe employment, and cannot recover from the defendant." This was modified by adding thereto the clause, "unless you further find that the promises and representations were made by the defendant to the plaintiff, as testified by him, and that the plaintiff relied thereon," and was then given as part of...