Patnode v. Harter

• Decision Date: 29 May 1889
• Docket Number: 1,298.
• Citation: 21 P. 679,20 Nev. 303
• Parties: PATNODE v. HARTER et al.
• Court: Nevada Supreme Court

21 P. 679

20 Nev. 303

PATNODE v. HARTER et al.

No. 1,298.

Supreme Court of Nevada

May 29, 1889

Appeal from district court, White Pine county; A. L. FITZGERALD Judge.

Action for personal injuries by Patnode against Harter and other. Plaintiff was nonsuited, and appeals.

Baker & Wines and Henry Rives, for appellant.

Wren & Cheney, for respondents.

MURPHY J.

This is an action to recover damages for injuries received by plaintiff while employed at work in defendants' mine. The court below granted a nonsuit upon the ground that the testimony introduced by the plaintiff showed that the plaintiff had by his own negligence proximately contributed to the injuries he received. The testimony shows that plaintiff was 42 years of age; that he had been engaged in the business of mining for a number of years; that he had been at work for defendants for a period of 16 days that the mine of defendants was worked with a windlass over an incline, which was mostly at an angle of 45 degrees; the lower part of the incline was about 60 degrees; that there were skids and two runways for buckets, about 8 inches apart that there was a ladder-way on one of the runways; that three buckets were in use in the incline,--one going up as the other came down and one was being filled while the loaded one was being hauled up and the empty one lowered; that three of the employeés were in the incline,--two at the windlass, and one at the bottom, filling the buckets, that it was a custom of these three men to take turns about at the windlass and filling the buckets, and all did the same kind of work at times; that on the day the injuries were received plaintiff was at work at the bottom of the incline, filling buckets; that he had put a few inches of dirt in bottom of the bucket, then six drills, and one short pick, and then filled the bucket to within a few inches of the top with dirt; that plaintiff was looking up the incline, and the bucket got caught; "that one of the men at the windlass hallooed to loose the bucket," and he started up to relieve the bucket, and when up about 25 feet from the bottom of the incline the rope broke, and the bucket fell upon him causing the injuries he received; that it was a rule of the mine that no man should follow up a loaded bucket; that the men at the windlass were, however, in the habit of calling to the man below to come up and loosen the bucket, and the man below was in the habit of so doing; that the rope used was an inch rope; that it had been in use for two or three weeks; that there was rope in the office to be put on when a new rope was needed; that when the bucket caught, as it was apt to do when tools were put therein, and sometimes from rough places in the skids, it was the custom for the windlass men to try and shake it loose, and sometimes they would pull on the rope. Plaintiff knew it was dangerous to follow the bucket up the incline. He knew that the rope looked old, and had been worn from dragging on the skids or cross-beams which held or supported the two runways for the buckets, but had never called the attention of the owners of the mine, or their foreman, thereto.

This is substantially the testimony introduced upon the part of the plaintiff, and upon which the nonsuit was granted. Whether a case should be withdrawn from the jury, and the plaintiff nonsuited, is purely a question of law. When properly made, it is simply a decision that the law affords no relief upon the evidence adduced, admitting every fact and conclusion which it tends to prove. It is not a decision upon the weight of the evidence where it is conflicting, but that it is not sufficient to justify its submission to the jury. Cooper v. Insurance Co., 7 Nev. 121; Pratt v. Hull, 13 Johns. 335.

Did the plaintiff contribute in any degree to the injuries received by him when he left the bottom of the shaft and ascended the incline for the purpose of loosening the bucket, knowing it to be dangerous to do so. In Harper v. Railroad Co., 32 N. J. Law, 88, the court said: "When, in an action for damages, it appears from the evidence that the plaintiff has been guilty of great imprudence, which was at least one of the proximate causes of the injury which befell him, the law does not afford him any compensation, and the question upon the point of the existence of negligence in the conduct of the defendant becomes wholly unimportant." To the same effect are the following cases: Runyon v. Railroad Co., 25 N. J. Law, 556; Waite v. Railroad Co., 96 E. C. L. 725; Flemming v. Railroad Co., 49 Cal. 257. In Railway Co. v. Fowler, 56 Tex. 457, BONNER, J., said: "The master will not be liable for any injuries resulting to the servant from causes open to the observation of the servant, and which it requires no special skill or training to foresee will be likely to occasion him harm. *** When a servant of mature years undertakes any labor *** the risks incident to which were equally open to the observation of himself and the master, the servant takes upon himself all such risks." See, also, 2 Thomp. Neg. 1008; Rush v. Railroad Co., 36 Kan. 133, 12 P. 582; Berger v. Railway Co., 38 N.W. 814; Thompson v. Railroad Co., 57 Mich. 308, 23 N.W. 820; Railroad Co. v. Lyons, 119 Pa. St. 336, 13 A. 205; Deville v. Railroad Co., 13 Nev. 120; Bunting v. Railroad Co. 14 Nev. 356; Glascock v. Railroad Co., 73 Cal. 141, 14 P. 518; Banking Co. v. Kenney, 58 Ga. 490. It is the duty of the employer to furnish his employé suitable and adequate tools and implements for his use. When he has done this he does not engage, however, that they will always continue in the same condition, and any defect which may become apparent from their use it is the duty of the employé to observe and forthwith report the same. An employé who before the injury had knowledge of the defect in the tools or implements, or who, having a reasonable opportunity to inform himself, ought to have known such defects, is to be presumed, by his remaining in the employment, to have assumed the risk of such danger, and cannot recover for an injury resulting therefrom; and his knowledge will have the same effect whether his employer was informed or ignorant of such defect; and this rule applies with much greater force when the defect or danger is obvious to the senses.

In Sullivan v. Bridge Co., 9 Bush, 89, the court said "He not only had the means of knowing, but did know, the danger he was incurring, and voluntarily placed himself in a position where he lost his life; when, by the exercise of ordinary care for his own safety, he might have avoided it." Railway Co. v. Fowler, 56 Tex. 457. In Railroad Co. v. Drew, 59 Tex. 11, STAYTON, J., said: "The general rule is that one who enters into an employment which is attended with risk of injury of which such employé has notice, or by reasonable care may have notice, cannot recover compensation from the master, if by exposure to such risk he is injured, and this rule applies to cases where injury is received from the use of defective implements or machinery of which the servant had notice." To the same effect are the following authorities: Whart. Neg. § 215; Hayden v. Manufacturing Co., 29 Conn. 557; Railroad Co. v. Still, 19 Ill. 509; City of Lancaster v. Kissinger, 12 Reporter, 636. When an employé knows, or by the exercise of ordinary diligence might know, of any defect or imperfection in the machinery about which he is employé and continues therein without protest, he assumes the risks from such dangers and cannot recover for an injury received. Money v. Coal Co., 55 Iowa, 671, 8 N.W. 652; McGlynn v. Brodie, 31 Cal. 381. In Williams v. Clough, 3 Hurl. & N. 258, it is said: "The master cannot be held liable for an accident to his servants while using machinery in his employment, simply because the master knows that such machinery is unsafe, if the servant has the same means of knowledge as the master." It was held in Assop v. Yates, 2 Hurl. & N. 770, "that the plaintiff could not recover for injuries, because, after he had complained of the danger, and knowing all the circumstances, he voluntarily continued at work." The case of Griffiths v. Gidlow, 3 Hurl. & N. 655, is similar in many respects to the case under consideration. In that case it appeared from the evidence that the hook by which the barrel was attached, which drew it up was not safe; that it ought to have been a spring-hook, which, it was alleged, would have prevented the accident which caused the injury. "The answer to this," says the judge, "seems to us to be that the plaintiff himself possibly attached it to the tub or barrel, which afterwards fell upon him, and seems never to have made any observations or complaint in respect to it. We think that a servant so acting cannot maintain an action against an employer. He himself was contributing to the injury; and, as it was stated by Lord CRANWORTH, in the case in the house of lords,--Paterson v. Wallace, 1 Macq. 748,--it is essential for the plaintiff to establish that the injury arose from no rashness of his own." In Priestley v. Fowler, 3 Mees. & W 1, which was an action by a servant against his master for injuries received in consequence of the breaking down of an overloaded van, it was held that he could not...