United Verde Extension Mining Co. v. Littlejohn

• Decision Date: 13 February 1922
• Docket Number: 3703.
• Parties: UNITED VERDE EXTENSION MINING CO. v. LITTLEJOHN.
• Court: U.S. Court of Appeals — Ninth Circuit

279 F. 223

UNITED VERDE EXTENSION MINING CO. v. LITTLEJOHN.

No. 3703.

United States Court of Appeals, Ninth Circuit.

February 13, 1922

[Copyrighted Material Omitted]

Favour & Baker, of Prescott, Ariz., for plaintiff in error.

O'Sullivan & Morgan, of Prescott, Ariz., for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge (after stating the facts as above).

It is assigned as error that the court overruled certain motions made by the defendant relating to special damages claimed by the plaintiff for loss of time and wages because of his failure to get work between the date of the injury and the date of the trial. The claim for loss of time on the part of the plaintiff as special damages, instead of an element of general damages, may not be in accordance with the practice in Arizona. As to that we are not sufficiently advised; but however that may be, it does not appear to have affected the substantial rights of the parties, and under section 269 of the Judicial Code, as amended by the Act of February 26, 1919 (40 Stat. 1181 (Comp. St. Ann. Supp. 1919, Sec. 1246)), the objection must be disregarded in this court. The pecuniary value of the time lost by plaintiff in consequence of the injury is a proper element of recovery, where the existence and the amount of the loss is established with the requisite certainty. 17 C.J. § 106, p. 780; Wade v. Le Roy, 61 U.S. (20 How.) 34, 44, 15 L.Ed. 813; Vicksburg, etc R.R. Co. v. Putnam, 118 U.S. 545, 554, 7 Sup.Ct. 1, 30 L.Ed. 257; District of Columbia v. Woodbury, 136 U.S. 450, 459, 10 Sup.Ct. 990, 34 L.Ed. 472; Texas & Pac. Ry. v. Volk, 151 U.S. 73, 79, 14 Sup.Ct. 239, 38 L.Ed. 78; Louisville E. & St. Louis R.R. v. Clarke, 152 U.S. 230, 242, 14 Sup.Ct. 579, 38 L.Ed. 422. Damages for loss of time up to the date of the trial may be recovered. 17 C.J. § 106, p. 781.

It is assigned as error that the court overruled defendant's demurrer, challenging the sufficiency of plaintiff's complaint in the particular that it failed to show that the plaintiff was employed in a hazardous occupation at the time of the injury. The same question is raised on a motion for a directed verdict and the refusal to give certain requested instructions as to a hazardous occupation. Paragraphs 3154 and 3155 of the act of the Legislature of Arizona, referred to in the complaint (Revised Statutes of Arizona of 1913, 1051), provide:

'Par. 3154. That to protect the safety of employees in all hazardous occupations in mining, smelting, manufacturing, railroad, or street railway transportation, or any other industry, as provided in said section 7 of article XVIII of the state Constitution, any employer, whether individual, association, or corporation, shall be liable for the death or injury, caused by any accident due to a condition or conditions of such occupation, of any employee in the service of such employer in such hazardous occupation, in all cases in which such death or injury of such employee shall not have been caused by the negligence of the employee killed or injured.'

'Par. 3155. The labor and services of workmen at manual and mechanical labor, in the employment of any person, firm, association, company, or corporation, in the occupations enumerated in the next section hereof, are hereby declared and determined to be service in a hazardous occupation within the meaning of the terms of the preceding section.

'By reason of the nature and conditions of, and the means used and provided for doing the work in, said occupations, such service is especially dangerous and hazardous to the workmen therein, because of risks and hazards which are inherent in such occupations and which are unavoidable by the workmen therein.'

Subdivisions 8 and 10 of paragraph 3156 provide:

'The occupations hereby declared and determined to be hazardous within the meaning of this chapter are as follows:

'(8) All work in or about * * * open pits, open cuts, * * * ore reduction works and smelters. * * *

'(10) All work in mills, shops, works, yards, plants and factories where steam, electricity, or any other mechanical power is used to operate machinery and appliances in and about such premises.'

Paragraph 3158 provides as follows:

'When in the course of work in any of the employments or occupations enumerated in the preceding section, personal injury or death by any accident arising out of and in the course of such labor, service and employment, and due to a condition or conditions of such occupation or employment, is caused to or suffered by any workman engaged therein, in all cases in which such injury or death of such employee shall not have been caused by the negligence of the employee killed or injured, then the employer of such employee shall be liable in damages to the employee injured, or, in case death ensues, to the personal representative of the deceased,' etc.

Whether the plaintiff at the date of his injury was employed by the defendant in a hazardous occupation, as defined by this Arizona statute, was in its final analysis a question of fact. It was also a question of fact whether the injury was caused by an accident arising out of, and in the course of, such labor, service and employment, and was due to a condition or conditions of such occupation or employment. The plaintiff testified that:

'On June 2, 1920, I was working in the bull gang under Mr. Wright as foreman; had been working in this gang since the smelter was started on August 1, 1919. I did all kinds of work, around the yards and the general office, cleaning up, moving machinery, unloading cars, drilling concrete, swinging a jack-hammer, installing machinery-- anything like that, as ordered by the boss. The smelter plant consists of the smelter, sample mill, machine shops, and all those works. * * * We had to run concrete in for putting up the rolls. This concrete construction was an addition to the sample mill. The sample mill was used to crush ore for the smelter, and the crushers operate with motor power. I had not been working there the day before, but on June 2d five of us were taken over to the sample mill and we jacked up the rolls. Wright then told Clark and Stoven to go below and put the tops on the bolts that go through the concrete to hold it, and told me and the other boys to put in the bolts. I grabbed a bolt and went on the staging, and the plank cracked, and I didn't know any more until I was getting into the car, helped by two men, to go to the hospital. The bolt was about 4 feet long and 2 inches in diameter. I don't remember falling; I would not say I fell, because I do not know. The concrete pit was about 10 feet wide and 10 feet deep, where the boards crossed it; it was built as a conveyor to run ore from the rolls into the sample mill; that was why the end of the mill was cut out. I had to walk on the planks across the aisle to put in the bolt. There were three planks, side by side, 12 feet by 1 foot by 2 inches. I held the bolt up, the plank broke, and I lost consciousness until I was being put in the automobile to be taken to the company hospital.' The evidence on behalf of the defendant with respect to this feature of the case was that of a witness who was employed in the same gang with the plaintiff. He testified:

'This pit was outside the sample mill, at the end of the building. There was no power there. We were working on the construction, putting up the rolls. The planks were put across, so we could work back and forth across the pit.'

The defendant contends that this evidence did not show that the plaintiff was engaged in a hazardous occupation in mining or smelting, or where power was used, and that the court should have so instructed the jury. We think it showed that plaintiff was employed by the defendant in a hazardous occupation within the scope and purpose of the statute; that is to say, he was employed in work 'in and about an open pit' in an additional construction to the sample mill, and this sample mill was to be used to crush ore for the smelter, and the evidence showed that the crusher was operated by motor power. The work of construction in which the plaintiff was employed was necessary to enable the defendant to carry on its business of smelting ores, and the work was 'in and about an open pit'-- 'ore reducing works and a smelter. ' We think the evidence showed that plaintiff was engaged in a hazardous occupation, as described by the statute; but it remained for the jury to determine whether the accident was due to a condition or conditions of such occupation, and whether the injury was caused by the negligence of the plaintiff. These questions of fact were submitted to the jury.

The court instructed the jury, among other things, as follows:

'I charge you, as a matter of law, that all work in and about mines, ore reduction works and smelters is a hazardous occupation within the meaning of the law. Therefore, if you believe, from a preponderance of the evidence, that the plaintiff, at the time he claims to have been injured, was working in and about open pits, open cuts, mines, ore reduction works, or smelters, he was at the time engaged in a hazardous occupation and that it comes within the meaning of the Employers' Liability Law. * * * The first question for you to determine is whether the plaintiff, at the time and place mentioned in the complaint, and while in the service and employment of the defendant, and in the course of his work in such employment, received the injuries, or any of the injuries, described, set forth in his complaint. If you find from the preponderance of the evidence that the plaintiff, in the course of his labor and while in the service or employment of the defendant, received the injuries, or any of the injuries...