Shaw v. New Year Gold Mines Co.
Decision Date | 09 July 1904 |
Citation | 77 P. 515,31 Mont. 138 |
Parties | SHAW v. NEW YEAR GOLD MINES CO. |
Court | Montana Supreme Court |
Commissioners' Opinion. Appeal from District Court, Cascade County; J. B Leslie, Judge.
Action by E. A. Shaw, as administrator of the estate of Joseph L Adams, deceased, against the New Year Gold Mines Company. From a judgment for defendant, plaintiff appeals. Affirmed.
A. C Gormley, for appellant.
Ransom Cooper, for respondent.
Appeal from a judgment of nonsuit. Joseph Adams, who was plaintiff's intestate, brought suit against the New Year Gold Mines Company to recover damages for personal injury caused by the alleged negligence of defendant. The material allegations of the complaint as to this negligence are as follows:
"(9) That by reason of the said neglect and omission of the defendant to keep and maintain a safe place wherein plaintiff was required to work as aforesaid as defendant's employee, and by reason of the injuries suffered by plaintiff solely because of said negligence and want of ordinary care on the part of the defendant, as herein before set forth, the plaintiff has been damaged by the defendant in the sum of thirty thousand dollars."
The answer of defendant denies that the injuries to plaintiff were caused by the negligence of defendant. Sets up contributory negligence on the part of plaintiff. Alleges that he had been employed at the mine for some time, and knew the conditions, and knew that in running the tunnel it was necessary for the employés to drill holes, put blasts in the rock in the breast of the tunnel, and explode them; that he had been engaged for a long time in the performance of that kind of work, and well knew that sometimes such blasts would miss fire and fail to go off, and that it was sometimes difficult for the man who put in blasts to ascertain whether all the blasts fired went off; that the danger from unexploded blasts was incident to this class of employment; that those engaged in the work of running the tunnel assumed the risk; that he voluntarily continued his services, with full knowledge of the risk, without objection; and that, if plaintiff was injured by the negligence of any one, it was the negligence of fellow servants, for which defendant was not responsible.
At the close of plaintiff's testimony, defendant moved for a nonsuit, which was granted, and judgment entered in favor of defendant. From this judgment, plaintiff appeals.
1. Counsel for appellant insists that, by the decisions of this court upon appeals from judgments of nonsuit, it is well settled that whatever the evidence tends to prove will be considered as proven, and that a judgment upon a nonsuit will not be sustained unless the conclusion from the facts necessarily follows, as a matter of law, that no recovery could be had in any view which could be reasonably taken from the facts which the evidence tends to prove. Cain v. Gold Mountain M. Co., 27 Mont. 529, 71 P. 1004; Coleman v. Perry, 28 Mont. 1, 72 P. 42; Ball v. Gussenhoven (Mont.) 74 P. 871; Michener v. Fransham (Mont.) 74 P. 448; Nord v. B. & M. M. Co. (Mont.) 75 P. 681; McCabe v. Montana Central Ry. Co. (Mont.) 76 P. 701; Cummings v. H. & L. S. & R. Co., 26 Mont. 434, 68 P 852. Under this rule, however, the record must contain competent testimony fairly tending to affirmatively prove the allegations of the complaint. The burden of proof is upon plaintiff, and is not satisfied if the conclusion to be reached from the testimony offered is merely a matter of conjecture. If such conclusion be equally consonant with the truth of the allegations and with some other theory or theories inconsistent therewith, it becomes a mere conjecture, and the rule of the burden of proof is not satisfied. Thus, in an ordinary case of negligence, like the one under consideration, plaintiff has the burden of proving the negligence of defendant as alleged, and also that such negligence was the proximate cause of plaintiff's injury. If the testimony leaves either the existence of negligence of defendant, or that such negligence was the proximate cause of the injury, to conjecture, it is insufficient to establish plaintiff's case. If the conclusion to be reached from the testimony is equally consonant with some theory inconsistent with either of the issues to be proven, it does not tend to prove them, within the meaning of the rule above announced. The use of the word "tend" does not contemplate conjecture. It contemplates that the testimony has a tendency to prove the allegations of the complaint, and not some other theory inconsistent therewith. Patton v. Texas & P. Ry. Co., 179 U.S. 658, 21 S.Ct. 275, 45 L.Ed. 361; Deschenes v. Railroad, 69 N.H. 285, 46 A. 467; Searles v. Manhattan Ry. Co., 101 N.Y. 661, 5 N.E. 66; Dobbins v. Brown, 119 N.Y. 188, 23 N.E. 537; Atchison, T. & S. F. R. Co. v. Alsdurf, 68 Ill.App. 149; Breen v. St. Louis Cooperage Co., 50 Mo.App. 202; Meehan v. Spiers Mfg. Co., 172 Mass. 375, 52 N.E. 518; 2 Labatt on Master & Servant, §§ 283, 287, and notes. Justice Brewer uses the following language in Patton v. Texas & P. Ry. Co., 179 U.S. 658, 21 S.Ct. 275, 45 L.Ed. 361: ...
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