Reino v. Montana Mineral Land Development Co.

• Citation: 99 P. 853,38 Mont. 291
• Parties: REINO v. MONTANA MINERAL LAND DEVELOPMENT CO.
• Decision Date: 08 February 1909
• Court: Montana Supreme Court

99 P. 853

38 Mont. 291

REINO v. MONTANA MINERAL LAND DEVELOPMENT CO.

Supreme Court of Montana

February 8, 1909

Appeal from District Court, Jefferson County; Lew. S. Callaway Judge.

Action by Abraham Reino against the Montana Mineral Land Development Company. From a judgment for plaintiff, defendant appealed. Reversed and remanded for new trial.

Kremer Sanders and Kremer, Walsh & Nolan, for appellant.

Walsh & Newman, and C. R. Stranahan (S. A. Anderson, of counsel), for respondent.

HOLLOWAY J.

This is an action for damages for personal injuries. The plaintiff recovered judgment and the defendant appeals from the judgment and from an order denying it a new trial. At the close of plaintiff's case the defendant moved for a nonsuit, which was denied, and this ruling is specified as error.

1. The plaintiff testified that he was working for the defendant as a miner in a double-compartment inclined shaft, 85 feet deep that a bucket was used to hoist waste, the bucket being raised and lowered by a stationary engine near the mouth of the shaft. It appears that a cable was attached to the bucket, then run over a pulley in the gallows frame, and down to and around a drum, the drum being operated by the engine that the movements of the drum could be controlled by a friction clutch, gear, or brake, so that, when the bucket was at the surface, it could be held in that position by means of this brake operating on the drum. The plaintiff further testified that on the occasion of his injury the bucket had been raised to the surface; that he was at the bottom of the shaft at work, when, without warning to him and without any opportunity to escape, the bucket fell upon him, crushing one of his legs to such an extent that amputation of the foot was necessary. He testified that a Mr. Ward was the engineer who at the time was in charge of and operating the hoisting engine. He also testified concerning his age, earning capacity before his injury, and his condition after his injury. Dr. Ward also told of the plaintiff's injury and of his having amputated the plaintiff's foot. A witness Peterson, who was also an engineer and who was to take Ward's place on the succeeding shift, testified that he was at the engine at the time of the accident, which occurred some time before he was to go on shift. These questions were then propounded to him, which he answered: "Q. Go on and tell us how the engine was operating and the raising and lowering of the bucket, particularly describe the drum; what it was that held the bucket up, and what loosened it to let the bucket go down. A. There was a platform there, and the engineer pulled on the rope that throwed the platform back, and there was a chain on the bucket and washer, and a slot that the chain dropped into we pulled that over, and that lowered the bucket a little. It would tip it right over and into the car, and we would raise the bucket back up again and that pulled the trapdoor back and the bucket was already over the shaft to be lowered. Q. How did you lower the bucket? A. We loosened the friction. Q. You loosened the friction and it goes down that way? A. Yes, sir. Q. What was it that held the bucket that night as it hung over the shaft? A. The brake. Q. Go on and tell us what Mr. Ward was doing, tell us all about it, and tell what occurred. A. Mr. Ward took the box off from one end of the drum, and was going to shim it up, put some shims in. The boxing was loose, and he was going to shim it up, and the drum raised up and come out of gear so that the brake would not hold it, and the bucket went down, and that is when Reino was hurt. Q. Could the bucket as it hung there have been pulled over or swung over on the ground by the side of the shaft while doing that work? A. Yes, sir; it could have been." This is the substance of all of plaintiff's testimony. Does it show or tend to show negligence on the part of Ward, the engineer? It is a general rule that negligence must be shown. It will not be presumed. In Rysdorp v. George Pankratz Lumber Co., 95 Wis. 622, 70 N.W. 677, it is said: "Negligence is the cause of the accident, in a legal sense, only when it is of such a character as that men of ordinary prudence, judgment, and experience ought reasonably in the light of the attending circumstances to have foreseen that it was likely to produce such an accident."

In 1 Thompson's Commentaries on the Law of Negligence, it is said: "As will more fully appear in the next title, the law does not impute negligence to an injury that could not have been foreseen or reasonably anticipated, as the probable...