Mountain Copper Co. v. Van Buren

• Decision Date: 25 May 1903
• Docket Number: 913.
• Parties: MOUNTAIN COPPER CO., Limited, v. VAN BUREN et al.
• Court: U.S. Court of Appeals — Ninth Circuit

123 F. 61

MOUNTAIN COPPER CO., Limited, v. VAN BUREN et al.

No. 913.

United States Court of Appeals, Ninth Circuit.

May 25, 1903

Van Ness & Redman and W. S. Goodfellow, for plaintiff in error.

James G. Estep, George O. Perry, and Campbell, Metson & Campbell (C. H. Oatman, of counsel), for defendants in error.

In Error to the Circuit Court of the United States for the Northern District of California.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

ROSS Circuit Judge.

This was an action for damages, brought by the heirs at law of John Van Buren, deceased, for the death of the latter, which occurred by reason of a cave in the mine of the plaintiff in error, in which the deceased was at the time working, engaged in shoveling the ore into cars for carriage to the surface.

There was in the case no question of contributory negligence, nor any question of negligence on the part of a fellow servant the complaint counting solely upon the negligence of the defendant company, the plaintiff in error here. On the trial evidence was given on the part of the plaintiffs tending to show the alleged negligence on the part of the defendant, and there was evidence given by the defendant tending to show that there was no negligence on its part. The court below instructed the jury, among other things:

'In considering the evidence in this case, you will remember that the burden of proof is upon the plaintiffs to show that the dave in the mine of the defendant which resulted in the death of Van Buren was caused by the negligence of the defendant. In this connection you will, however consider all the facts and circumstances connected with the location, action, and extent of the cave itself which appear to be established by the evidence. And if such facts and circumstances furnish no evidence of a lack of reasonable care and diligence on the part of the defendant in preventing the cave, and in keeping the place where the deceased was at work in a reasonably safe condition, then the cave itself would furnish no evidence of negligence on the part of the defendant. But if, on the other hand, such facts and circumstances, connected with the cave itself, its location, action, and extent, furnish evidence of the absence of such reasonable care and diligence on the part of the defendant, you will take that fact into consideration in arriving at your verdict.'

That instruction was followed by this, to which an exception was reserved by the plaintiff in error:

'Where, in a case of this character, there is no claim on the part of the defendant that the deceased or injured party contributed to the accident, the caving of the stope to the extent described in the testimony in this case is itself prima facie evidence of neglect on the part of the defendant to keep the place of work in a safe condition; and it is for the defendant to show that it was without fault, and that the cave was the result of some movement of the mass of rock that could not have been prevented by reasonable care

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