Monson v. La France Copper Co.

Citation43 Mont. 65
PartiesMONSON v. LA FRANCE COPPER CO.
Decision Date22 March 1911
CourtUnited States State Supreme Court of Montana

43 Mont. 65

MONSON
v.
LA FRANCE COPPER CO.

Supreme Court of Montana.

March 22, 1911.


Appeal from District Court, Silver Bow County; John B. McClernan, Judge.

Action by Sadie A. Monson, administratrix of John Monson, deceased, against the La France Copper Company. From an order granting a new trial after judgment for plaintiff, she appeals. Affirmed.


Breen & Hogevoll and H. K. Jones, for appellant. Gunn & Hall, for respondent.

BRANTLY, C. J.

On former appeals in this cause the defendant was awarded a new trial on the ground that the evidence was insufficient to show that its negligence was the efficient cause of the death of Monson, plaintiff's intestate. Monson v. La France Copper Co., 39 Mont. 50, 101 Pac. 243, 133 Am. St. Rep. 549. This trial, had upon the same pleadings, resulted in a judgment for plaintiff. The defendant thereupon moved for a new trial, alleging as grounds therefor insufficiency of the evidence to justify the verdict, and errors occurring during the trial by which defendant suffered prejudice. The court made a general order sustaining the motion. Plaintiff has appealed.

Under the rule uniformly observed by this court, the defendant is entitled to an affirmance of the order, if it can be justified upon any one or more of the grounds assigned in the motion. State v. Schnepel, 23 Mont. 523, 59 Pac. 927;Welch v. Nichols, 41 Mont. 435, 110 Pac. 89.

By reference to the statement in the opinion delivered on the former appeals, it will be found that the negligence alleged was the omission by the defendant of the duty imposed by the statute (Rev. Codes, § 8536) to equip properly, with doors or gates, a hoisting cage used by it in a vertical mining shaft, from which, by reason of the omission, Monson, who was employed as a pumpman, fell and was killed. The defenses upon which defendant relied were general denials and the affirmative defenses of contributory negligence and assumption of risk by Monson.

The evidence adduced, while clearly establishing the omission of duty by the defendant and the death of Monson, was held insufficient to show that the former was the direct proximate cause of the latter. It appeared that the hoisting cage in use by defendant was furnished with doors so adjusted that they could readily be taken from their hinges and set aside when not in use in raising or lowering men; that, when so used, the doors were manipulated by employés known as topmen and station tenders; that the superintendent, engineers, and foremen, when engaged in inspection and similar duties, did not use the doors, but depended for safety upon the handbar, another device with which the cage was equipped; that Monson in going to the places to which his duties called him, though he was expected to do so, did not put on the doors even when plaintiff accompanied him, which she sometimes did with friends visiting the mine; that the topman was not present, and that Monson did not put on the doors on the evening of his death; that at his request the hoisting engineer lowered him to the 1,400-foot station about 11 o'clock in the evening, that being the hour for him to go on shift; that he had with him his lunch in a bucket; that the cage...

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