Smith v. Centennial Eureka Min. Co.

• Decision Date: 25 February 1904
• Docket Number: 1473
• Citation: 27 Utah 307,75 P. 749
• Court: Utah Supreme Court
• Parties: LOULIA B. SMITH and MARGARET SMITH, MARIAN SMITH, RUBY SMITH, FRANK SMITH, and JOHN SMITH, Minors, by their Guardian ad litem, LOULIA B. SMITH, Respondents, v. THE CENTENNIAL EUREKA MINING COMPANY, a Corporation, and THE RIO GRANDE WESTERN RAILWAY COMPANY, a Corporation, Appellant

75 P. 749

27 Utah 307

LOULIA B. SMITH and MARGARET SMITH, MARIAN SMITH, RUBY SMITH, FRANK SMITH, and JOHN SMITH, Minors, by their Guardian ad litem, LOULIA B. SMITH, Respondents, v. THE CENTENNIAL EUREKA MINING COMPANY, a Corporation, and THE RIO GRANDE WESTERN RAILWAY COMPANY, a Corporation, Appellant

No. 1473

Supreme Court of Utah

February 25, 1904

Appeal from the Fifth District Court, Juab County. Hon. Thomas Marioneaux, Judge.

Action to recover damages for death alleged to have been caused by the negligence of the defendants. From a judgment in favor of the plaintiffs against the railway company, it appealed.

REVERSED.

Messrs Sutherland, Van Cott & Allison for appellant.

L. R Rogers, Esq., and W. R. White, Esq., for respondents.

BARTCH J., delivered the opinion of the court. BASKIN, C. J McCARTY, J., concurring.

OPINION

BARTCH, J.

STATEMENT OF FACTS.

This action was brought by the heirs of John P. Smith to recover damages for his death, which, they claim, was caused through the negligence of the defendants. The allegations of the complaint, so far as material to this decision, are, substantially, that on May 4, 1901, and for six or more months previous to that date, John P. Smith, the deceased, was employed by the defendant mining company in filling ore and other materials from a mine chute and other buildings belonging to the mining company into freight cars belonging to the defendant railway company; that at and during such time the deceased was so employed at Eureka, Juab county, Utah; that the mining company had engaged the railway company to haul ore from Eureka to various places for the purpose of smelting and selling it, and to provide strong, safe, and suitable cars therefor, which should be safe for the use of the employees of the mining company in loading ore on them: that freight cars were provided for the mining company by the railway company, and that it was the duty of both defendants to see that the cars were in good repair and condition for the said John P. Smith in loading them with ore for freighting; that on the date above mentioned the railway company furnished the mining company and the deceased with two cars for ore, and placed them higher up on the track than the ore chutes and building containing ore, and on a higher grade than the place where the chute is opposite to the track, thereby leaving the deceased to drive the two cars down to the chute; that on both cars the brakes, and appliances connected with them, were badly out of repair and loose, "the equalizer, pins, bolts, bars, and other appliances connected with the brakes were out of repair and loose; the shoes connected with the brakes and wheels of the cars were worn out and thin and badly out of repair, and would not hold or block the wheels of said cars, and some of the shoes of the cars were entirely gone on said day, and were negligently permitted for some time previous to remain so;" that the defective and unsafe condition of the brakes and appliances could, with the exercise of ordinary care and diligence, have been discovered by the defendants, and at the time mentioned was known to them, but the same was unknown to the deceased; that on the day mentioned, while the deceased was performing his duties of loading ore, it became necessary for him to drive said cars from the higher grade, a distance of several rods, down near and under the ore chute, and in attempting to do so lost control of the cars, by reason of the defects aforesaid, and the same went down the grade, past the ore chute and building where the ore was, at a high rate of speed, and collided with certain loaded cars below, with such force that the deceased was thrown between the cars, and there crushed and killed; and that the plaintiffs were dependent upon the deceased for support.

The railway company in its answer denies the allegations of the complaint respecting negligence, and pleads affirmatively contributory negligence of the deceased, and that his injuries and death were occasioned by the risks incident to his employment.

From the evidence it appears, in substance, that for about six months before and at the time of the fatal accident the deceased was in the employ of the defendant mining company, and his duties were to load ore from that company's orehouse, through ore chutes, into cars furnished by the railway company. The building stood alongside of a side track belonging to the railway company, extending in an easterly direction from the company's main line of railway to a point some distance beyond the orehouse. From the point where the deceased started the cars at the time of the accident to the orehouse there is a descending grade. In front of the building the track is level, but immediately after passing the building the track again has a down grade of about 4.35 feet in every 100 feet. From the point where the grade commences to descend to the lowest point in the grade before it commences to ascend the distance is about 610 feet. The railway company in furnishing cars to the mining company, ran them from its main line onto this side track, and left them standing above the orehouse. It was then the business of the mining company to run the cars, as it required them, down to the orehouse, by means of the brakes, load them with ore, and, upon being loaded, run them down below the orehouse to the lowest point on the grade, to be taken thence by the railway company onto its main line. On May 4, 1901, and for some months prior thereto, the deceased was in the employ of the mining company, and it appears this work of so loading and running down the cars was intrusted to him. On the afternoon of that day he attempted to run two cars, Nos. 631 and 678, coupled together, down the track, doubtless, as indicated by the circumstances, with the intention of stopping them at the orehouse and loading them. This he attempted to do by means of the hand brakes, but was unable to stop them, and the cars ran past the orehouse down the steep grade and collided with other cars loaded with ore. In the collision he was thrown between the cars, crushed. and killed.

The evidence introduced on behalf of the plaintiffs shows that the two cars which caused the collision were examined by a number of persons very shortly after the accident, and that the braking apparatus was badly out of repair; that on the one car the braking apparatus was so defective as to render it practically useless; that the brake shoes were worn very thin; that by manipulating the brake staff one could get no pressure on the brake wheel; that the brake chain on the staff was doubled on itself between a brace and the brake staff, so that the brake could not be set; that there was one cog broken out of the cog wheel on the brake staff; and that there was too much slack in the brake chain. As to the other car, the plaintiffs' evidence shows that the brake shoes were badly worn; that one of them was riding on the flange of the wheel, which prevented the even application of the braking power; that two guide bolts were gone; and that the point of the brake dog was so chipped and worn that it would not lock into the ratchet on the brake staff. It further appears from such evidence that, while the braking apparatus on one of these cars might possibly have held it, it was entirely inadequate, owing to the defects, to hold the two cars, and that the defects were so numerous and obvious that they could readily be discovered.

Respecting the braking apparatus, the witness B. L. Short, testifying for the plaintiffs, in the course of his testimony, inter alia, made statements as follows: "I got up on No. 678, and tried to set the brake, and found out that the shoes would make no effect upon the brake wheel. If found that the chain was doubled on itself, and was binding with the brace that came down on the staff. You might twist there as long as you wanted to and you would not get any brake power, for the reason that it was iron-bound. The brake shoes did not take hold of the wheel. You could move it with your foot. After getting down out of the car onto the ground I examined the brake chain to determine whether there was too much slack in it or not, and found that there was; it could have been taken up. Assuming that the conditions on Saturday (day of accident) were the same as I found them on Sunday, I would say that the front car, No. 678, could not have been moved down that track by a man without its running away, because he would not have the brake power to hold the car--practically no brake power. My opinion is that if car 678 had been left standing on the side track loose, not coupled to any other car, it would not have remained stationary, for the brakes would not have held it. The car was simply held there by reason of the fact that it was coupled to the car above it (631). Coming down to the defects on car number 631, the dog which fits into the ratchet, thereby locking the brake after being set, was worn thick, and it would not lock into the ratchet. I could not get the dog to stay in the ratchet at all unless I put my foot against it. The brake chain was loose, but it did not seem to work just right. The brake shoe was out on the flange, which did not give an even pressure on both ends of the break beam. I discovered something was wrong immediately by turning the wheel. I found I could not get action on it like one in good order. I discovered at once that the dog was bad. I looked to see if it was in position, and saw that it was chipped. All I had to do to discover this was to look down at the dog. I examined the brakes on these two cars, and found that the brake shoes on 631 were defective in the extreme. If car 631 was in the same condition the day previous as when I found it, it could not...