Stoll v. Daly Mining Co.

• Decision Date: 25 April 1899
• Citation: 19 Utah 271,57 P. 295
• Court: Utah Supreme Court
• Parties: FREDERICK STOLL, RESPONDENT, v. THE DALY MINING COMPANY, APPELLANT

57 P. 295

19 Utah 271

FREDERICK STOLL, RESPONDENT, v. THE DALY MINING COMPANY, APPELLANT

Supreme Court of Utah

April 25, 1899

Appeal from the Third District Court, Summit county, Hon. A. G Norrell, Judge.

Action by plaintiff to recover damages for personal injuries.

From a verdict for plaintiff defendant appeals.

Reversed.

Messrs Bennett, Harkness, Howat, Bradley & Richards, and W. I Snyder, Esq., for appellant.

There is no need of citation of authorities to sustain the well established rule of law, that parol testimony of the contents of a writing is not competent, until it is shown that the writing itself can not be produced. The rule of law extends to rules for the regulation and government of the conduct of employees. Georgia, etc., R. Y. Co. v. Propst (Ga.), 7 So., 635; Railroad Co. v. McMullen, (Ind.), 20 N.E. 287, 291; Price v. Railroad Co. (S.C.), 17 S.E. 732, 735; Missouri, etc., Co. v. Lamothe (Tex.), 13 S.W. 194.

The opinion of witnesses on the substance of an issue should never be resorted to, except when the subject is beyond the knowledge or experience of ordinary men. Walter v. Railroad Co., 40 Mo.App. 544; King v. Railroad Co., 11 S.W. 563; Central, etc., Co. v. Ryles (Ga.), 11 S.E. 499; Butter v. Chicago, etc., Co. (Iowa), 54 N.W. 208; Ft. Worth, etc., Co. v. Thompson (Tex.), 21 S.W. 137.

The mere fact of the happening of an accident is no evidence that it happened through the negligence of any person. 1 Bailey's Master and Servant, Sec. 1597 et seq.; Kuhns v. Ry. Co., 31 N.W. 868; Knight v. Cooper, 14 S.E. 991; Brymer v. So. P. Co., 90 Cal. 496.

That evidence of prior injuries not connected with the injury in question was immaterial and prejudicial, see Snowden v. P. v. Coal Co., 52 P. 599; Harrison v. Ry. Co., 7 Utah 523; Sanford v. Craig (Neb.), 72 N.W. 854; Bank v. Bradley, 19 So. 791, 795; Pa. Company v. Roy, 102 U.S. 451.

At the common law the engineer at a mine, who lowers men to their work and takes up the material which the miners take from the mine, is a fellow servant of the miners. Bartonshill Coal Co. v. Reid, 3 Macq., 295; Spring Valley Coal Co. v. Patting, 86 F. 433; Trewatha v. Buchanan, etc., Co., 96 Cal. 494; Buckley v. Gould, etc., Co., 14 F. 833; Woods v. New Bedford Coal Co., 121 Mass. 252; Philadelphia, etc., Works v. Davis (Pa.), 4 At., 513; Mc Charles v. Mining Co., 10 Utah 470.

Where the instructions on a material point are contradictory, the judgment will be reversed. People v. Anderson, 44 Cal. 65; McCreary v. Everding, 44 Cal. 246; People v. Wong, Ah Ngow, 54 Cal. 151; Sappenfield v. Ry. Co., 91 Cal. 48, 59; Holt v. Ry. Co. (Idaho), 35 P. 39, 42; Bleiler v. Moore (Wis.), 69 N.W. 164; Wenning v. Teeple, 144 Ind. 189. Nor was the erroneous instruction given cured by the giving of a correct instruction. Fitzgerald v. Meyer (Neb.), 41 N.W. 123; Baxter v. Lockett (Wash.), 6 P. 429; Sappenfield v. Ry. Co., 91 Cal. 48, 59.

Messrs. Moyle, Zane & Costigan, for respondent.

The first error assigned is as to the admission of evidence as to the posted-up rules in the mine. It was shown that the rules were posted up as a placard. They were tacked up on the side of the mine. They were not rules printed in book form like railway rules, and they came within the well-known exception, such as notices on buildings, devices on flags, signs on houses, signs posted up on lots for sale, and other well-known instances. The practice is to assume of such things that they can not be produced. State v. Credle, 91 N.C. 640; 1 Jones on Ev., p. 461, Sec. 204; Teft v. Size, 10 Ill. 432; Mc Millan v. Baxley, 112 N.C. 578.

The counsel did not ask the court to instruct the jury to disregard the evidence. He did not ask for any ruling of the court upon the point, he merely took an exception to the remarks. His plain duty was to ask the court to make a ruling and to except to any ruling that was made if adverse to him. He did not do so, and he has no right to complain now. Worley v. Moore, 97 Ind. 15; Carter v. Carter, 101 Ind. 451.

McCARTY, District Judge, delivered the opinion of the court. BARTCH, C. J., and BASKIN, J., concur.

OPINION

McCARTY, District Judge

STATEMENT OF FACTS.

The plaintiff brought this action to recover for personal injuries alleged to have been sustained by him while in the employ and service of defendant as a common miner in its mine. He bases his right to recover on the ground that defendant negligently employed and knowingly retained in its service an incompetent engineer to run and manage the engine used to lower and raise the cages in a double compartment shaft in its mine.

The complaint alleges that the plaintiff received the injuries complained of while being lowered into the mine in one of the cages when the alleged incompetent engineer was running the engine. And that the accident which was the cause of the alleged injuries was due to the incompetency of said engineer. The defendant by its answer denies all the material allegations of the complaint, and alleges that if plaintiff was injured, it was through and by the negligent acts of a fellow servant, and of which negligence the defendant had no knowledge.

The record, in brief, discloses about the following state of facts: The accident in which it is alleged plaintiff received the injuries complained of occurred in defendant's mine known as the Daly Mine, at 7 o'clock on the morning of December 6, 1895, and before daylight. The shaft in which the accident occurred was a double compartment shaft, and when a cage was being lowered in one compartment, a cage in the other compartment would be raised, one cage acting as a counterbalance to the other. The shaft was intersected by a tunnel on the 800-foot level of the mine, through which tunnel the men entered and left the mine on going to and returning from their work. On entering the mine through this tunnel on the morning in question, the plaintiff, with several of his colaborers, was hoisted to the surface in the west compartment cage, and the empty cage in the east compartment was lowered to the 700-foot level, where it came in contact with a set of trips, or chairs, which had been left across the shaft, making a solid obstruction. These trips, or chairs, are made of iron, and a set is on each level of the mine. They are thrown across the shaft by means of a lever, and are used for the cage to rest on when placing cars on or pulling them off the cage.

Patrick Breene, a fellow servant of plaintiff, was the station tender, and it was his duty to manipulate the chairs, put loaded cars on to the cage, and pull empty cars off. Just prior to the accident Breene was on the 700- foot level, and sent up two cars on the cage in the east compartment of the shaft, and the west cage came down, and he went up on top in that cage, leaving the trips, or chairs, extending out into the shaft on the east side, having forgotten to pull them back, thereby leaving a solid obstruction in the east compartment of the shaft. Soon after arriving on the top he returned in the west cage to the 800-foot level, and waited there until the plaintiff and his co-laborers came into the mine through the tunnel to go to work. The plaintiff and his co-laborers got on to the west cage, and were hoisted to the top as stated above. As they went up, the east cage came down, and when it reached the 700-foot level, struck the chairs that extended out into the shaft making a loud report, which Breene, the station tender, took to be a blast on one of the levels above him. When the cage struck the chairs and was stopped, Adamson, the engineer, not knowing of the obstruction, unreeled and paid out one hundred feet of cable on top of the cage, supposing that it was being lowered to the 800-foot level. The slack cable that had thus been paid out on top, of the cage was taken up, and the cage raised to the surface and loaded with men, the plaintiff being one of the number, to go to the 1,000-foot level. The cage was then lowered, and when it reached the 700- foot level struck the chairs with great force and was again stopped and caused the alleged injuries to plaintiff for which this action is brought. After the cage had been thus intercepted by the chairs, Adamson, the engineer, as on the former occasion, continued to pay out the cable, the slack of which rested on the cage. The cable was a six-inch flat steel cable, and weighed nine pounds to twenty-five and one-half inches. About twenty-five feet from the engineer on either side was an indicator, the one on the east side showing the position of the cage in the east compartment, and the one on the west side showing the position of the cage in the west compartment. If the cage, when being lowered, should meet with an obstruction, and be prevented from going down, and the cable should be paid out, the indicator would not show the position of the cage in the shaft, but would show where the cage would be in the shaft if it had not been caught. There was a system of bells in each compartment of the shaft, and with these the station tender would signal the engineer to raise and lower the cages. The number of signals indicated to the engineer what was wanted. There was a printed rule on each station of the mine containing instructions how to signal, and also two of these printed rules tacked up near the engineer for his guidance, and where it could be constantly seen by him.

Testimony was introduced that tended to show that a competent engineer would have known when the cage was stopped by the chairs. And that he would have known that something was wrong by the vibration of the cable and the jar of the steam lever when the slack of the cable was taken up and the cage suddenly lifted from the chairs.

Adamson testified that at the time the cage...