Portland Gold Mining Co. v. Flaherty

• Decision Date: 14 October 1901
• Docket Number: 1,501.
• Parties: PORTLAND GOLD MIN. CO. v. FLAHERTY.
• Court: U.S. Court of Appeals — Eighth Circuit

111 F. 312

PORTLAND GOLD MIN. CO. v. FLAHERTY.

No. 1,501.

United States Court of Appeals, Eighth Circuit.

October 14, 1901

James L. Blair (James A. Seddon and Robert A. Holland, Jr., on the brief), for plaintiff in error.

R. S Morrison (Scott Ashton, on the brief), for defendant in error.

This action was instituted by Anthony Flaherty, the defendant in error, against the Portland Gold Mining Company, plaintiff in error, to recover damages for injuries alleged to have been sustained by him while engaged in its service. The particular charge is that the defendant directed plaintiff to go up a certain up-raise, called the Four Queens up-raise, rising from the fourth level of its mine, to clear off rock and dirt which had fallen upon the lagging and stulls, at a time when the up-raise, by reason of an accumulation of powder smoke gas, and foul air, was not a reasonably safe place, or in a reasonably safe condition, for any one to work in. It is alleged that one Harrington, another employe of defendant company, was directed to accompany the plaintiff, and that Harrington made the ascent, climbing up the crossing stulls in the up-raise, a little in advance of plaintiff, and that when they had reached a point about 100 feet above the level from which they started, Harrington, suddenly overcome by the powder smoke, gas, and foul air, fell, and in falling struck plaintiff, and caused him to fall to the bottom of the up-raise, and to be greatly injured. Two defenses are interposed: (1) A general denial; (2) contributory negligence. There was a verdict and judgment for plaintiff from which defendant prosecuted a writ of error to this court.

Before SANBORN and THAYER, Circuit Judges, and ADAMS, District Judge.

ADAMS District Judge, after stating the case as above, .

The first assignment of error is that the trial court erred in not directing a verdict in favor of the defendant. Learned counsel for defendant contend that such direction should have been given for two reasons: (1) Because there is no evidence that any negligence on the part of the defendant caused the injury to plaintiff; (2) because plaintiff assumed all risk attending and doing the work required of him.

In support of the first proposition, it is earnestly contended that no evidence is found in the record tending to show either that Harrington was overcome by powder smoke, gas, or foul air, or that plaintiff was struck by the falling body of Harrington, and thereby precipitated to the bottom, in the particular way and manner charged in the complaint; that, on the other hand, the verdict was based solely upon an unwarrantable conjecture by the jury without any substantial evidence to support it. If such were the case, it may readily be conceded that the verdict cannot be sustained.

The trial court, after having directed the attention of the jury to the particular negligent acts alleged in the complaint, charged as follows:

'The plaintiff has based his case on that state of facts in his pleading, and he is held to prove those facts. If he was injured in any other way, if Harrington was not overcome by powder smoke, gas, or fell (when the plaintiff fell) from some other means, and in his fall carried the plaintiff down, the plaintiff cannot recover. If Harrington did not strike the plaintiff at all, and did not cause the plaintiff to fall, the plaintiff cannot recover. That would be permitting the plaintiff to recover on a case he had not made; that he had not warned the defendant to meet.'

From the foregoing it appears that the issue was clearly presented to the jury, and its verdict is responsive, to the effect that Harrington was overcome by powder smoke, gas, or foul air, and that as a consequence he fell, and in his fall struck plaintiff, and precipitated him to the bottom of the up-raise.

Is there any substantial evidence to support these findings? We do not mean direct evidence of a participant in the unfortunate event, or of an eyewitness necessarily, but is there any substantial evidence of any kind? Fair and reasonable inferences, drawn from facts and circumstances established by the proof, are always competent evidence, and, indeed, in many cases of disputed fact, furnish the most satisfactory solution. The record now before us, in our opinion, presents just such a case. There is abundant evidence that the up-raise in question was on June 8, 1899, when plaintiff was injured, impregnated with foul air, that its effect was to greatly weaken and debilitate any one inhaling it, and that this weakening and debility often came on very suddenly. In fact, the defendant's own witnesses satisfactorily prove that the air in the up-raise was so impure and deleterious that two men had been overcome by it on the morning of June 8th, just before plaintiff made the ascent; that they became sick and unable to work longer; and that defendant company then concluded to do no more work on the up-raise until a certain drift could be completed so as to introduce air into it. On the question whether Harrington fell as a result of the impure air, as charged in plaintiff's complaint, the jury had before it the foregoing facts, well established by satisfactory evidence. The jury also had before it the undisputed fact that Harrington was an old and experienced miner, and probably so familiar with climbing up the stulls of up-raises as to be reasonably sure-footed and secure. From these facts the inference is not only permissible, but, in our opinion, altogether reasonable, that Harrington fell as a direct result of the weakening effect of the very bad and impure air of the up-raise. The jury was therefore fully warranted in finding, in response to the issue submitted to it by the court, that Harrington's fall was occasioned by the impure air in the up-raise, as alleged in the complaint.

We are also of opinion that the record shows sufficient evidence from which the jury could reasonably infer that plaintiff was struck by the falling body of Harrington, and thereby precipitated to the bottom. The undisputed facts disclosed in the proof on this point are that Harrington, in making the ascent, was necessarily immediately above the plaintiff, and five or six feet only in advance of him; that Harrington fell; that something struck plaintiff; and that the two men were found immediately thereafter at the bottom of the up-raise; Harrington dead, and plaintiff severely injured.

A fair inference to be drawn from these facts, in the absence of any evidence showing any other cause for plaintiff's fall, is that the was struck by Harrington's body, and thereby caused to fall to the bottom of the up-raise. We cannot agree with counsel for defendant that there is any ground for a reasonable inference that Harrington fell as a result of insecure footing or slipping on the stulls, or that plaintiff's fall was occasioned by the dropping of rock upon him. It would certainly be altogether conjectural to say that Harrington fell either as a result of slipping or insecure footing, or that some stone fell and hit the plaintiff, and caused him to drop to the bottom of the up-raise. There is no evidence tending to show that Harrington slipped, or that any stone fell, and therefore no ground to warrant an inference that plaintiff was injured thereby; whereas there are facts, fully established in evidence, that justify the inference that plaintiff fell as charged in the complaint.

The evidence, as already pointed out, substantially shows that the defendant did not provide a reasonably safe place for its servants to work in. Indeed, this is practically conceded. The stress of the defense is that the mining company did not direct plaintiff and Harrington to go into the up-raise to clear off the rock and dirt at all, but did direct them to go to the bottom of the up-raise, and take up and wheel away a large quantity of dirt, which in the progress of the recent drilling above had fallen and collected there. Ray, the foreman, gave the directions in the presence and hearing of De Camp, the superintendent of the company. Both his and De Camp's version is that the men were directed to go to the foot of the up-raise, and take up and wheel away the dirt, and were cautioned under no circumstances to go aloft, because of the presence of bad air in the up-raise.

The fact fully recognized by them, that the up-raise was filled with bad air, was a reason assigned by them for confining the work to be done by the plaintiff and Harrington to wheeling away the dirt from the bottom. Plaintiff and several other witnesses testified positively that the foreman directed plaintiff and Harrington to go up the up-raise, and clean off the stulls and lagging, from the top to the bottom. The jury, under proper instructions, found this controverted issue in favor of the plaintiff. We are bound, therefore, to conclude from defendant's own evidence, not only that the place into which plaintiff was sent to work was a dangerous and unsafe place, but that defendant well knew it to be so, and we are bound to conclude from the verdict that the defendant ordered the plaintiff to do work in this dangerous place. It follows that in doing so the defendant did a wrongful and negligent act.

It is next contended that the court erred in not directing a verdict...