Monson v. La France Copper Co.

• Decision Date: 22 March 1911
• Citation: 114 P. 778,43 Mont. 65
• Parties: MONSON v. LA FRANCE COPPER CO.
• Court: Montana Supreme Court

114 P. 778

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 P. 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 P. 927; Welch v. Nichols, 41 Mont. 435, 110 P. 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 was then raised to the surface; that at a signal given by Monson, at or about 2 o'clock, the cage, still without doors, was returned to him to raise him to the 600-foot station, where he was to complete his work for the night; that by direction of Monson the cage was then set by the engineer at the latter station; that, having received no signal to take it away, the engineer sent men down another compartment to ascertain the cause of the delay; that at about 60 feet above the 1,400-foot station these men found the dead body of Monson lying with the head upon the shaft timbers on one side, the feet in the same position on the other, and the hips resting on or against a wall plate; that the face was bruised and cut, but that there were no broken bones nor evidence of other wounds; that there was no evidence that the wound on the face was mortal, and that the lunch bucket was found in the cage. So far, the evidence contained in the record now before us is substantially the same.

At the second trial other testimony was introduced for the purpose of showing how the death of Monson occurred, as follows:

The witness Holland testified: "I did not make any examination of his body on the surface, not more than handling it, putting it back on the cage, and taking it to the surface, and taking it off there. In handling his body it appeared to be all broke up. The bones were broken; appeared that way by handling. *** His face was pretty badly cut up, right through here [indicating], across the face and mouth. I am indicating a gash between his eyes and nose, and also the top of the head, the brain. I saw a gash around his mouth, too. I could not tell, as an ordinary citizen, whether the wounds I saw were fatal enough to cause his death." On the first trial he had said nothing about the head and shoulders being crushed. On cross-examination he admitted that the following testimony given by him at that time was correct: "His [Monson's] face was all battered up and cut up. It was bruised and swollen and a good many cuts in it. I did not notice any broken bones. *** There was blood just where he was resting is all I noticed. I did not observe any blood any further down than that. He was found half-way between the 1,300 and 1,400 foot levels. I could not tell whether the bruises he had were caused by having fallen a distance, or whether they were caused by a squeeze. I did not examine the cage."

Witness Richards: "The shoulders and head were badly crushed. In fact, the head wasn't any thicker than that [illustrating by placing his hands together, palms inward] when I got it."

Dr. McCarthy: "I listened to the testimony of the two last witnesses, the testimony of Michael Holland and the testimony of the witness Richards, the undertaker. In my opinion, as a physician and surgeon, these wounds are sufficient to produce death."

The testimony of defendant's witnesses is as follows:

Frank the mine superintendent: "I could see the head very plainly, and it was somewhat swollen. There was, as I remember it, a bad gash across the forehead, and another one, I think, across the face and cheek, extending through the lip. Aside from that,...