The Good-Eye Mining Company v. Robinson

• Citation: 73 P. 102,67 Kan. 510
• Decision Date: 10 July 1903
• Docket Number: 13,256
• Parties: THE GOOD-EYE MINING COMPANY v. SARAH E ROBINSON, as Administratrix, etc
• Court: United States State Supreme Court of Kansas

73 P. 102

67 Kan. 510

THE GOOD-EYE MINING COMPANY v. SARAH E ROBINSON, as Administratrix, etc

No. 13,256

Supreme Court of Kansas

July 10, 1903

Decided July, 1903.

Error from Cherokee district court; A. H. SKIDMORE, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PRACTICE, SUPREME COURT--Review of Refusal to Require Security for Costs. The refusal of a trial court to require a plaintiff to give security for costs in lieu of a poverty affidavit filed with the petition, even if the ruling be erroneous, will not be reviewed here after a judgment has been rendered for the plaintiff which this court decides to affirm on the merits of the case. The deprivation of a legal right which results in no harm or prejudice to the complaining party will not justify a reversal of the judgment.

2. MASTER AND SERVANT--Delegated Duty--Liability of Master. It is the duty of a master to provide his servants with a reasonably safe place in which to work. When the master delegates this duty to an officer, agent, or employee, such person stands in the place of the master and becomes his substitute as vice principal, and the master is liable for his negligence to the same extent as though he himself had been guilty of the negligence. The case of A T. & S. F. Rld. Co. v. Moore, 29 Kan. 632, followed.

3. MASTER AND SERVANT--Evidence Sufficient. The evidence examined and held to be sufficient to sustain the judgment.

R. W. Blue, and Blue & Hamilton, for plaintiff in error.

Finch & Wheatley, for defendant in error.

SMITH J. All the Justices concurring.

OPINION

SMITH, J.:

This was an action brought by the administratrix of the estate of Martin L. Gordon to recover damages from the plaintiffs in error for his death, caused by the alleged wrongful and negligent acts of a superintendent of the company.

C. L. Rains and three others were partners, under the firm name of the Good-eye Mining Company, engaged in mining lead and zinc ore. The deceased was in their employ. While working in one of the drifts or chambers of the mine he was killed by a boulder which fell from the top or roof of the drift. John Gordon, a brother of the deceased, was superintendent of the mine. It was shown that it was his custom, with the assistance of another person, to inspect the roof twice every day and to test its safety by prodding. A witness named Everett, who testified for plaintiff below, was working near Gordon, the deceased, at the time of the accident. In the afternoon of the day Gordon was killed the witness talked with the superintendent concerning the safety of the roof. He called his attention to the condition of the particular place from which the boulder fell. The superintendent stated that he had tried it, or examined it, the day before and could not budge or feeze it. The witness testified: "He says, 'Everett, I could not prod that down yesterday,' and he was a bigger man than I was, and I thought if he could not feeze it there was no use of my going up there and trying it, and so it was left there." Again, the witness saw the superintendent go out of the mine a short time before Gordon was killed. He said: "'Everett, I will go out; the gasoline has come; I will come down and we will inspect the roof again'; and when he got out the gasoline had not come and he went to fixing a tub, and while he was up there Martin was killed." John Gordon testified for the plaintiff below that he was superintendent of the ground, and that his duties were to take care of the mine, look it over, and to protect the men the best he knew how; that he directed them where to work, and had full charge and control of the ground and the men working in the mine; that he hired and discharged them. From a verdict and judgment against them, plaintiffs in error have come here by proceedings in error.

The plaintiff below filed with her petition a poverty affidavit in lieu of a cost bond, as allowed by sections 5067 and 5068 General Statutes of 1901. The plaintiffs in error, on a motion made by them to require plaintiff to give security for costs, showed that she had contracted to give her attorneys forty per cent. of the amount of any judgment which might be recovered. The motion was overruled. It is argued that the attorneys, having a beneficial interest in the case, should have been required to give security for the costs. this court is required by statute to disregard any error or defect in the proceedings which do not affect the substantial rights of the parties. (Gen. Stat. 1901, § 4574.) In the...