Vesel v. Jardine Mining Co., No. 8280.

Docket NºNo. 8280.
Citation116 Mont. 56
Case DateApril 18, 1944
CourtUnited States State Supreme Court of Montana

116 Mont. 56


No. 8280.

Supreme Court of Montana.

April 18, 1944.

Appeal from District Court, Sixth District, Park County; C. F. Holt, Presiding Judge.

Action by Tony Vesel against Jardine Mining Company for injury to plaintiff's eye. From a judgment for plaintiff and from an order denying defendant's motion for new trial, the defendant appeals.

Reversed and remanded with instructions.

BENNETT, District Judge, dissenting.

Vilroy C. Miller, of Livingston, and Clarence E. Wohl, of Butte, for appellant.

S. C. Ford, Wellington D. Rankin, Arthur P. Acher, and Sam D. Goza, Jr., all of Helena, for respondent.

MORRIS, Justice.

This is an action for damages for an injury to plaintiff's eye. The defendant, a mining company, was operating under Plan 3 of the Workmen's Compensation Act, Rev.Codes 1935, § 2990 et seq. The plaintiff at the time of the accident was an underground miner operating a power driven drill in defendant's mine at Jardine and was 58 years of age at the time of the trial and without dependents. June 2, 1936, a small particle, subsequently found to be a piece of steel, flew off the drill and embedded itself in the plaintiff's right eye. Following the accident, plaintiff turned his equipment over to his helper, gave him some instructions relative to the day's unfinished work and went to the company office, contacting “Bill Andrews” to whom the plaintiff referred in his testimony as the “super” explaining that he meant superintendent, and told Andrews about his accident. The plaintiff testified that Andrews told him he would take him to the company doctor, Mrs. Davisson, and that they proceeded to Mrs. Davisson's place. Mrs. Davisson operated a rooming house in Jardine where most of the miners in the employ of the defendant had their living quarters.

Mrs. Davisson was a practical nurse with broad experience in that line of work, and there being no physician at Jardine and no regularly established physician's office nearer than Livingston, some sixty miles away, Mrs. Davisson fixed up a room at her boarding house which she used to render first aid to defendant's employees. She treated the plaintiff by injecting some sort of fluid in his eye and wiped the eye with raw cotton, and the latter operation is alleged to have been done in such a way as to force the piece of steel, afterwards found to have penetrated the eye ball, deeper into the eye thereby practically destroying the sight of the eye.

Mrs. Davisson, on June 14th, twelve days after she had cared for the plaintiff's eye, became ill, took to her bed and died on July 18th. Just prior to her last illness, she dressed the plaintiff's eye a number of times in the evening and morning, but the treatments ceased from June 14th. After the first treatment the plaintiff returned to his work and lost no time until March, 1937, some nine months later. In the month of March, 1937, he received an injury to his left eye and there being no one near by to whom he could go for treatment he was taken to Gardiner where Dr. Grew, an osteopath, rendered first aid, and the plaintiff returned to Jardine. The following day he went to Bozeman and was under the care of Dr. Whitehead there for some time.

In treating the plaintiff's left eye and making a test of plaintiff's vision generally, Dr. Whitehead discovered what he thought was a particle in the right eye, obviously the steel that penetrated the eye on June 2, 1936. The plaintiff's left eye was bandaged during the treatment by Dr. Whitehead and all vision from that eye was shut off and plaintiff testified that he could see all right out of his right eye at that time. Dr. Whitehead advised plaintiff to go to the St. James Hospital at Butte, on the medical staff of which institution there was a Dr. Spurck, a specialist in taking photographic X-rays and have his right eye X-rayed. The plaintiff did not act on this advice until August, 1937, but about that time became a patient at St. James Hospital under the care of Doctors Donovan and Morse, who had Dr. Spurck make the X-ray photographs of plaintiff's eye. They endeavored to remove the steel from the eye with a powerful magnet but were unsuccessful, and after treating the plaintiff some little time, during which he said he could feel the obstacle in the eye move under the force of the magnet, further treatment was abandoned.

On the advice of the Butte physicians the plaintiff went to Rochester where he was treated for some time. Plaintiff's testimony was rather unintelligible in many particulars and both his counsel, counsel for the defendant as well as the court had to inquire frequently of the court reporter and each other as to what the plaintiff said in his testimony. His sentences were composed of such a jumble of words having no coordination that one is often left to conjecture as to his meaning. But it was sufficiently clear from his testimony that while he was at Rochester some sort of an operation was made on his eye which caused the eye to bleed freely. No apparent relief resulted. He returned to Montana and on being advised that Dr. Murphy of Missoula had some new and powerful magnet he went to Dr. Murphy for treatment and it appears that after being treated he went back some twenty or thirty days later, by appointment, for further treatment, still without satisfactory result. Some time later he returned to Rochester for further treatment but obtained no substantial relief. On his return to Montana he contacted the Industrial Accident Board, seeking compensation but neither he nor the defendant had advised the board of his injury and no claim was made for more than two years and the Industrial Accident Board...

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