Victor-American Fuel Co. v. Peccarich

• Decision Date: 15 November 1913
• Docket Number: 3,976.
• Citation: 209 F. 568
• Parties: VICTOR-AMERICAN FUEL CO. v. PECCARICH. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

209 F. 568

VICTOR-AMERICAN FUEL CO. v. PECCARICH. ^[1]

No. 3,976.

United States Court of Appeals, Eighth Circuit.

November 15, 1913

Caldwell Yeaman, of Denver, Colo. (Frank E. Gove, of Denver, Colo., on the brief), for plaintiff in error.

L. J Stark, of Denver, Colo. (George S. Klock, of Albuquerque N.M., on the brief), for defendant in error.

Before HOOK and CARLAND, Circuit Judges, and VAN VALKENBURGH District judge.

CARLAND Circuit Judge.

This suit was brought by Peccarich to recover damages for personal injuries received by him as an employe of the fuel company and which he alleged were caused by its negligence. The fuel company has removed the case here, complaining that error intervened to its prejudice in the trial of the case, which resulted in a judgment in favor of Peccarich.

Before proceeding to consider the errors relied upon, we may observe that the motion for a directed verdict, made at the close of the plaintiff's testimony, was waived by the introduction of testimony by the fuel company, and that the ruling on the motion for a new trial is not reviewable.

In order to intelligently understand the discussion of the errors assigned, it is necessary to state briefly the facts which Peccarich alleged to be his cause of action.

'Plaintiff further alleges that on the 12th day of August, A.D. 1909, while this plaintiff was in the discharge of his duty as the servant and employe of said defendant, and while this plaintiff was under the direction and order of said defendant, said defendant ordered and directed the plaintiff to go to the second right entry of one of its mines at Gibson, N.M., and which second right entry was an entry way connecting an old mine with the new mine, and the said defendant ordered and directed the plaintiff to build a wall at the place of the junction of the two aforesaid mines, which said wall would then and there wall up the second right entry connecting the said mines, and would stop the black damp emitted from the fire in the said old mine from coming through into the new mine, which said black damp would interfere with the men and employes of the said defendant working in the said new mine; that the said defendant on said day willfully, wrongfully, and negligently so misbehaved and conducted itself in this behalf that without warning or notice to the plaintiff, and while this plaintiff was in its service and constructing the said wall between the said old mine and the said new mine, caused, ordered, and permitted, and directed its servants and employes to go on and shoot in the pillars in the vicinity of the second right entry and in the vicinity where this plaintiff was building said wall to connect the said mines for the said defendant, and the said servants of the said defendant, yielding to said orders of such defendant, and pursuant to the permission and direction of the defendant, shot in the said pillars at the place aforesaid, and did then and there, by so shooting in the said pillars, weaken the roof at the junction point where this plaintiff was engaged in the construction of said wall as aforesaid, and by so shooting in said pillars by the said defendant and pursuant to its direction, permission, and order, the blanket and covering which had been hung up between and near the junction of the two said mines to prevent the black damp from coming through any part of the entry way between the two said mines and to convey air to the working place of this plaintiff, and which opening and aperture had not been walled up, fell, and while this plaintiff, in discharge of his duty, was attempting to put the said blanket and covering in its place in order to stop the said black damp coming through and to convey air to the working place of the plaintiff as aforesaid, and while plaintiff was engaged in handling the said blanket and covering, a rock then and there fell upon this plaintiff and severely and seriously and permanently injured plaintiff; that the said rock fell upon plaintiff and injured him as aforesaid solely through the negligence, carelessness, and gross want of care on the part of defendant in weakening the roof of the said mine by shooting in the pillars as aforesaid and directing and causing the same to be done through its order to its said employes and by giving permission to its said employes to so shoot in the said pillars without warning or notice to this plaintiff; and that the said injuries to this plaintiff were caused without any negligence on his part contributing thereto.'

The jury, in addition to a general verdict for the plaintiff, answered, among others, the following special interrogatories submitted to them by the court:

No. 2. What person or persons was or were guilty of the act or acts of negligence specified? Answer: The superintendent or his subordinate officers.

No. 7. If a shot was fired, what effect did it have upon the roof at the place where the accident occurred? Answer: Would have a tendency to loosen the roof.

No. 9. Was any defect in the roof of such a character as to be readily discoverable by ordinary inspection? Answer: No.

The fuel company moved the court for judgment in its favor on the special findings, making special reference to those above set forth on the theory that they were inconsistent with the general verdict and should control the judgment to be rendered. The trial court had the common-law power, to be exercised in its discretion, to submit special findings to the jury along with the general verdict and these...