Peterson v. Pittsburg Silver Peak Gold Mining Co.

• Decision Date: 28 April 1914
• Docket Number: 2090.
• Citation: 140 P. 519,37 Nev. 117
• Parties: PETERSON v. PITTSBURG SILVER PEAK GOLD MINING CO.
• Court: Nevada Supreme Court

140 P. 519

37 Nev. 117

PETERSON v. PITTSBURG SILVER PEAK GOLD MINING CO.

No. 2090.

Supreme Court of Nevada

April 28, 1914

Appeal from District Court, Washoe County; Thomas F. Moran, Judge.

Action by Robert S. Peterson against the Pittsburg Silver Peak Gold Mining Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed and remanded for new trial.

Samuel Platt, of Carson City, and George Martinson, of San Francisco, Cal., for appellant.

Dixon & Miller, of Reno, for respondent.

McCARRAN J.

This is an action in damages for personal injuries, alleged to have been sustained by the respondent through the negligence of the appellant, in whose employ he was engaged.

The record discloses that the respondent, Peterson, on the 14th day of June, 1911, was a member of the 6 p. m. shift in the Mary mine, and on the date of the accident was engaged as a machine driller in the Valcalda tunnel. At about 1 o'clock on the morning of the 15th of June, the respondent, while so engaged, drilled into an unexploded hole left by the previous shift. The result of his act was an explosion, by reason of which one member of the shift was instantly killed, another died in nine days thereafter from the injuries received, another was more or less seriously hurt, and the respondent received serious injuries.

The trial was had before a jury in the Second judicial district court, and a verdict was rendered in favor of respondent in the sum of $29,250. The appellant in this case, defendant in the court below, interposed and especially pleaded contributory negligence on the part of respondent, assumption of risk, and an executed release in accord and satisfaction.

From the judgment rendered in favor of respondent, and from the order denying appellant's motion for a new trial appeal is taken to this court.

The appellant sets up four major grounds upon which it relies for reversal, namely Prejudicial statements and remarks made by the court during the course of the trial; erroneous rulings as to the admissibility of testimony made during the course of the trial; failure on the part of the respondent to establish the negligence of appellant; and errors of the trial court in giving certain instructions and refusing certain other offered instructions.

Assignment No. 53 has to do with the remarks of the court made in ruling upon the motion of appellant to strike certain testimony. The court in that instance ruled against the moving party, and in the course of his ruling, made this remark: "I don't think the testimony does you any harm."

Assignment No. 77 is with reference to the remarks of the court in overruling an objection made by counsel for respondent to an interrogatory propounded by counsel for appellant, in which the court said: "I will tell you. (Addressing counsel for appellant.) Just as soon as this went in evidence, or you could have called Mr. Jussen right after they were put in evidence, or you could do it afterwards. You are not on surrebuttal testimony, but I will allow it just to show you that we give you every leeway possible, possibly more than the court should."

Assignment No. 76 is with reference to the remarks of the court presumably addressed to counsel for appellant, while he was cross-examining a witness. The transcript is as follows:

"Q. Now you were not there were you, when this explosion occurred? A. I hope not. Q. And all that you know about the explosion was what you speculated upon or the conclusions you drew after you went up there; is that true? A. Yes, sir.

Mr. Miller: Object; it is a compound question.

Mr. Hairston: And a misleading question.

The Court: Sustain the objection.

Mr. Platt: Exception on the ground it is proper cross-examination.

Mr. Miller: Move the answer be stricken out.

The Court: I will tell you. I have known you a long time, and I like you, and you are a good fellow; but, when you come to the trial of a case, I know an attorney is ambitious; I know he wants to do everything in the world; and I admire that; but don't step beyond the bounds."

To the latter remark exception was taken by counsel for appellant.

All of these remarks set up as assignments of error by appellant were made in the presence and hearing of the jury, and were excepted to by counsel for appellant. It is difficult to understand why remarks of the character appearing in the record in this case are necessary at all on the part of the trial court. While it is true that not every remark of the trial court will constitute reversible error, where it is made with reference to the admissibility of evidence, yet there is nothing of which a nisi prius judge should be more careful than in his remarks or assertions made with reference to admitted or rejected testimony during the course of a trial. The average juror is a layman; the average layman looks with most profound respect to the presiding judge; and the jury is, as a rule, alert to any remark that will indicate favor or disfavor on the part of the trial judge. Human opinion is ofttimes formed upon circumstances meager and insignificant in their outward appearance; and the words and utterances of a trial judge, sitting with a jury in attendance, is liable, however unintentional, to mould the opinion of the members of the jury to the extent that one or the other side of the controversy may be prejudiced or injured thereby.

A trial judge's ruling upon the admissibility of testimony is a ruling based solely upon the law of evidence; his comments or assertions or declarations have no place in the ruling, save and except in so far as they may express his idea as to the applicability of the matter presented, based upon the rules of evidentiary law. As to whether or not an attorney is a good fellow or not, a good fellow plays no part in the enforcement of a rule admitting or excluding testimony. As to whether or not a particular piece of testimony does harm or does not do harm is not for the court to say, and remarks upon this phase, made in the presence of the jury can have no beneficial effect; they are better left unsaid.

If remarks made by the judge in the progress of a trial are calculated to mislead the jury or prejudice either party, it would be grounds for reversal. We are not inclined to view the remarks made by the trial judge in this case in that light. Deshler v. Beers, 32 Ill. 368, 83 Am. Dec. 274.

While it may be reasonable to assume that remarks of the trial judge, such as those complained of in this case, may have an influence prejudicial to one or the other side of the case, yet, in view of the rule that the party who alleges error must establish the same clearly, we would not disturb the judgment in this case by reason of the errors assigned with reference to the remarks of the trial court. McMahon v. Eau Claire, 95 Wis. 640, 70 N.W. 829.

Appellant assigns as error the refusal of the trial court to grant appellant's motion for a nonsuit and for an instructed verdict. In this respect it is the contention of the appellant that an employé, injured from drilling into an unexploded shot, is held to assume the risk as being one incident to his employment, and further contends that the doctrine which requires the master to furnish a reasonably safe place for his employés to work is not applicable, where the object of the work performed is to continually change the place.

In reviewing this phase of the case, it must be observed that, by statutory enactment in this state, the common-law rule of fellow servant has been modified, and the common-law rule of contributory negligence has been superseded by statutory rule, which is more or less properly termed the rule of "relative" or "comparative" negligence. Sections 5649 and 5651, Revised Laws; Lawson v. Halifax, 36 Nev. 596, 135 P. 611.

While many of the authorities relied upon by counsel for appellant would sustain his contention in jurisdictions where the common-law rule of fellow servant prevails, they are not applicable under statutes such as ours. In other cases relied upon by appellant, the statement of the facts discloses that the party injured was a machine driller following himself with no intervening shift, and had personal knowledge that one or more of the holes which he himself had charged had failed to explode. These cases are not analogous to the one at bar, for the reason that the record here discloses that the respondent worked alternate shifts, and that it was his duty, in the course of his employment, to set up his machine and drill immediately following the explosion of a round of holes drilled and charged by the preceding shift, and hence could have no personal knowledge of the failure of any one of the holes to explode. There is a substantial conflict in the testimony as to whether or not the respondent was warned, or had any notice, that the preceding shift had left an unexploded hole. In fact, the record strongly bears out the contention of respondent that he had no notice. It appears to be almost conclusively established that the appellant company had no regular system whereby notice of unexploded holes were bulletined or reported by the off-going shift. Whatever may be said as to dangers incident to the employment of mining however forceful it may be contended that missed holes are frequent occurrences in mining operations, and that such is known to the average miner, it cannot, in our judgment, be successfully argued that in modern mining operations, where one group of men follow and take up the work of a previous group, they should assume the risks attendant upon latent or immediate dangers left by those who had previously been engaged in prosecuting the work at the same place. This is especially true in view of modern mining...