Utah Savings & Trust Co. v. Diamond Coal & Coke Co.

• Decision Date: 12 August 1903
• Docket Number: 1407
• Citation: 73 P. 524,26 Utah 299
• Parties: UTAH SAVINGS & TRUST COMPANY, a Corporation, as Administrator of the Estate of JOHN TASANEN, Deceased, Respondent, v. DIAMOND COAL & COKE COMPANY, a Corporation, Appellant
• Court: Utah Supreme Court

73 P. 524

26 Utah 299

UTAH SAVINGS & TRUST COMPANY, a Corporation, as Administrator of the Estate of JOHN TASANEN, Deceased, Respondent, v. DIAMOND COAL & COKE COMPANY, a Corporation, Appellant

No. 1407

Supreme Court of Utah

August 12, 1903

Appeal from the Second District Court, Weber County.--Hon. H. H Rolapp, Judge.

Action to recover damages for the death of plaintiff's intestate alleged to have been caused by the negligence of the defendant. From a judgment in favor of the plaintiff, the defendant appealed.

AFFIRMED.

Messrs Richards & Ferry and A. J. Shores, Esq., for appellant.

There is certainly a repugnancy between the constitutional provision stating that there shall be no limit of liability and the act of the Legislature restricting the recovery to five thousand dollars. In making this statement we are not unmindful of the general rule adopted by the courts that in determining the question of the constitutionality of the statute and its several parts, those portions of the statute which are unconstitutional will be discarded and the constitutional parts will be enforced in cases where they are so separable and independent that the courts can say that the Legislature would have enacted the constitutional part even though the unconstitutional part might fall. But when the parts of the statute are so mutually dependent and connected as conditions, considerations, inducements or compensations for each other as to warrant a belief that the Legislature intended them as a whole, and that if all could not be carried into effect the Legislature would not pass the residue independently, then if some parts were unconstitutional all of the parts which are thus dependent conditional or connected, must fall with them. Campau v. Detroit, 14 Mich. 276; State v. Dousman, 28 Wis. 541; Slauson v. Racine, 13 Wis. 398; Brooks v. Hydorn, 76 Mich. 273, 42 N.W. 1122; Ex parte Jones, 49 Ark. 110, 4 S.W. 639; Wadsworth v. Union Pacific Ry. Co., 33 P. 515.

Did the Legislature of the State of Wyoming intend that an action for damages should lie in such cases, irrespective of the amount of the recovery? The language of the section is: "In every such case the jury shall give such damage as they deem just and fair, not exceeding five thousand dollars." The very language precludes the idea of any purpose upon the part of the Legislature of the State of Wyoming to provide an action in such cases irrespective of the amount of the recovery.

Charles C. Dey, Esq., W. L. Maginnis, Esq., and W. H. Bramel, Esq., for respondent.

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

OPINION

McCARTY, J.,

STATEMENT OF FACTS.

This action is brought by the legal representative of John Tasanen, who was killed while he was in the employ of and at work for defendant company in its mine at Diamondville, State of Wyoming. The complaint charges negligence on the part of the company in suffering and permitting straw, wood, waste, and oil to be placed and stored in direct contact with its bodies of coal, and permitting its employees to use at and about such combustible materials, lamps with open flames, and by reason thereof, a fire was started which caused the death of the deceased. The defendant denied the allegations in the complaint charging negligence, and, as a further defense, alleged contributory negligence on the part of the deceased, and that he assumed the risks and hazards of the employment, and that the negligence, if any, that resulted in his death, was that of a fellow-servant. It appears from the record that the deceased came to the State of Wyoming from Finland, his native country, December 15, 1900, and went to work for and continued in the employ of the defendant company until his death, which occurred February 25, 1901. At the time of his death he had a wife and three minor children residing in Finland, and who were dependent upon him for support, and also a minor son, Franz Tasanen, twenty years of age, who resided with him at Diamondville. The trial court held that the members of his family who were in Finland, and who were alien non-residents, could not be considered in the trial of the case, and that the only damages that could be proved were those sustained by Franz Tasanen. We do not agree with the trial court in its conclusions on this point, but, as the plaintiff did not appeal, we are precluded from reviewing the question raised by this ruling. The mine in which the deceased was at work at the time of his death is entered and worked through a "slope" which follows the dip of the coal, at an incline of about thirteen degrees, and extends from the surface into the mine about 2,000 feet. At intervals along this slope, and on the south thereof, levels or entries are run out at right angles to the slope. Each level has a main and back entry, which are about thirty feet apart. The sixth south entry, the level in which deceased was at work at the time of the fire which caused his death, is in about 1,200 feet from the mouth of the slope or main entry to the mine, and the next or seventh south entry or level is further in on the slope, and runs parallel with the sixth south entry. These two entries extend south from the slope a distance of 5,000 feet, and are connected by crosscuts at points 1,400, 2,600 and 4,200 feet, respectively, from the slope. On the upper side of each level are excavations called "rooms," in which the miners work extracting the coal. These rooms are about ten feet high and twenty feet wide, and are numbered consecutively, commencing with room No. 1, which is nearest the slope. The coal is taken from the levels in cars drawn by horses. At the time of the catastrophe in which deceased was killed, there were four drivers working in the sixth south entry. At a point on this level, opposite room No. 45. and about 2,900 feet from the slope, there had been a crosscut from the main to the back entry, and at a point about ten feet from its entrance this crosscut was closed by a partition of pine boards, and over the entrance a canvas covering was drawn and fastened, which served as a door; making a room or "shack" about twenty feet in length by ten in width. This room or shack was used by the drivers to while away their time while waiting for their cars. A lot of smashed-up coal, pieces of board, rope, and pieces of canvas were permitted to accumulate in this shack while it was occupied by the drivers, as above stated. There was also an old wooden box in it, which contained cans of oil, from which the drivers filled their lamps, the flame of which lamps was open and unprotected. Just outside of this shack stood an old barrel. There had been several fires started and extinguished at this place before the one under consideration took place. The company had a man employed, "whose duty it was to look out for fires in the mine." On February 25, 1901, the deceased was working at the face of room 56, which extends back 300 feet from the main entry of the sixth level. This room is about 900 feet towards the face or end of the sixth entry from where the shack stood, and about thirty-eight feet from the slope; the shack being between room 56 and the slope. About 4 o'clock of the afternoon of the day in question a driver by the name of Boehn was coming from towards the south end of the sixth level with cars of coal, when he observed that the mine was on fire, as smoke was coming from the direction of the shack. He met another driver, by the name of Mahan, who said to him, "I wonder if this is the shack on fire." Another driver, who was apprised of the fire, went to the entries of the several rooms on this level where men were at work, and called to them that the mine was on fire, and for them to go to room 59, and from there into the seventh level, and from there to the slope and out of the mine; this being the only way by which the miners who were working in the sixth entry could escape. He went to room 56 and called to the deceased and his son to "come out to room 59 and out the seventh"; and, proceeding, he says: "The men in 56 were at the top. I could see their lights on their heads. I don't know what they said. They couldn't talk very well. They said something. I spoke in English. They stood and listened to what I said." The drivers were the only men who escaped. The others were smothered or strangled by smoke and gases created by the fire. The case was tried by a jury, who returned a verdict in favor of the plaintiff in the sum of $ 750. Defendant appeals.

McCARTY J., after stating the foregoing facts,...