Scott v. Utah Consol. Min. & Mill. Co.

• Decision Date: 28 February 1899
• Parties: ANDREW H. SCOTT, RESPONDENT v. UTAH CONSOLIDATED MINING & MILLING COMPANY, A CORPORATION, APPELLANT
• Court: Utah Supreme Court

56 P. 305

18 Utah 486

ANDREW H. SCOTT, RESPONDENT v. UTAH CONSOLIDATED MINING & MILLING COMPANY, A CORPORATION, APPELLANT

Supreme Court of Utah

February 28, 1899

Appeal from the 4th District Court, Utah County. Hon. W. N Dusenberry, Judge.

Action by plaintiff to recover damages for personal injuries alleged to have been received by him through the negligence of defendant. From a verdict and judgment in favor of plaintiff defendant appeals.

Affirmed.

Messrs Bennett, Harkness, Howat, Bradley & Richards for appellant.

The evidence is insufficient to support the verdict on the ground that the foreman omitted to inspect the ground for missed holes for the reason that the foreman owed the defendant no such duty. (Plaintiff was injured by the explosion of a missed hole in defendant's mine.)

Speaking of the place where he was injured and referring to a time immediately prior to the accident plaintiff says: "After clearing up we took a hammer and sounded the rock along the side to see if it was solid. I couldn't say whether I sounded it up in the corner or not, but I took a pick and picked it out a little bit to start a hole. Of course I didn't sound every place on it. I would take up the hammer and sound it; hit it a few taps; I couldn't say just where. I can't say that I sounded it in the corner; don't know whether I did or not. I decided the rock was solid. I couldn't pick it.

"Had the hole been reported to us by the foreman we would have looked for it until we found it. Unless we had some information we couldn't have found it. We couldn't see unless we stumbled onto it in some way; not if it had been five inches of where we started to drill."

Of course as against the plaintiff, his own statement must be accepted as the fact, and becomes conclusive against him. Fowler v. Coal Co., 52 P. 596.

The rule is that the plaintiff must show that the master either knew or ought to have known of the defect. 2 Bailey Per. Inj. relating to M. & S., Secs. 2621, 2647; R. R. Co. v. Allen, 78 Ala. 494.

Messrs. King, Burton & King, James A. Williams, Esq., and Grant C. Bagley, Esq., for respondent.

It makes no difference that there might have been a conflict in the evidence; it was reasonable for the jury to reach the conclusions it did reach in finding for the plaintiff, and their findings will not be disturbed. Mangum v. Bullion-Beck & C. M. Co., 15 Utah 534; Mader v. Taylor, Romney, Armstrong Co., 15 Utah 161; Nelson v. Southern Pac. Ry. Co., 15 Utah 325; Anderson v. Daly Min. Co., 49 P. 126 (Utah); Cunningham v. U. P. Ry. Co., 4 Utah 206.

It is unfair to the lower court and unfair to the respondent to make (such) a general exception to the whole charge covering a page, without even pointing out in any manner wherein it was objectionable. This court has repeatedly held that such an objection would not be considered. Lowe v. Salt Lake City, 13 Utah 91; Ruffatti v. Mining Co., 10 Utah 386; Wilson v. Sioux Cons. Mining Co., 52 P. 628.

BARTCH, C. J. BASKIN, J. and NORRELL, District Judge, concur.

OPINION

BARTCH, C. J.

This action was brought by the plaintiff to recover damages for personal injuries alleged to have been received by him through the negligence of the defendant. At the trial the jury rendered a verdict in favor of the plaintiff for $ 7,000. Upon judgment being entered for that sum, the defendant appealed to this court.

It appears that the main ground upon which the plaintiff relies for a recovery is negligence of the defendant in employing fellow servants who, it is alleged, were incompetent, and whose act, it is claimed, caused the injury of which complaint is made. The appellant contends that the evidence is insufficient to support a recovery on that ground, and the real question here presented is, therefore, whether there is evidence to support the judgment, for; if there is, then we are powerless to determine whether such evidence preponderates. That, in a case at law, we have no right to determine whether a judgment is supported by the preponderance of the evidence is no longer an open question in this court. There is testimony in the record which shows substantially that the accident, which caused the injury complained of, occurred in a cross-cut in the appellant's mine while the plaintiff and a co-employe were at work by direction of the acting foreman of the mine; that among the duties of these employes, as miners, were those of drilling holes into the rock and by means of explosives break down the rock and other material; and that while they were engaged in drilling a hole, the drill struck some unexploded powder which exploded and caused the injury. On the shift previous to the accident two other employes, Arthur Buckner and Charles Carter, had been at work in the same place, and had drilled holes and blasted rock. It is admitted Buckner was incompetent and unskilled as a miner, and, while there is some evidence to show that Carter knew more about drilling and blasting than Buckner, still he was known as an ore sorter rather than a miner. On this point the witness Robbins, a miner of experience, testified:

"The shift before the explosion I was in the drift or cross-cut, I saw Charlie Carter and Arthur Buckner and they were drilling when I went in. I struck a few licks on the drill. They were drilling in the left hand corner. * * * Where they were drilling was down in the left hand corner about a foot and over from the face and about ten inches from the side. I saw Charlie Carter with powder in his hand, drawing it backwards and forwards over the flame of a candle. It was giant powder. I turned round and saw Carter and I said: 'You damn fool you will be blowing somebody up yet.' and broke and ran out of...