Wilson v. Sioux Consol. Min. Co.

• Decision Date: 05 March 1898
• Docket Number: 899
• Citation: 16 Utah 392,52 P. 626
• Court: Utah Supreme Court
• Parties: WILLIAM E. WILSON, RESPONDENT, v. THE SIOUX CONSOLIDATED MINING CO., APPELLANT

52 P. 626

16 Utah 392

WILLIAM E. WILSON, RESPONDENT, v. THE SIOUX CONSOLIDATED MINING CO., APPELLANT

No. 899

Supreme Court of Utah

March 5, 1898

Appeal from the Fourth district court. W. N. Dusenberry, Judge.

Action by William E. Wilson against the Sioux Consolidated Mining Company to recover for personal injuries. From a judgment for plaintiff, defendant appeals.

Affirmed.

Bennett Harkness, Howat, Bradley & Richards, for appellant.

Though the defendant may have known of the vicious nature of the mare and instructed the plaintiff to handle her without imparting such knowledge to him, still if, through his experience the plaintiff became aware of the same facts, by continuing in the employment, the risks thereof were assumed by him. Green & Coates St. Pass. Ry. Co. v. Bresmer, 97 Pa. St. 103; Powers v. N.Y. L. E. & W. Ry. Co., 98 N.Y. 279; Jenney Elec. L. & P. Co. v. Murphy (Ind.), 18 N.E. 30; Lehman v. Van Nostrand (Mass.), 42 N.E. 1125; Pingree v. Leyland, 135 Mass. 398; Yeaton v. Boston & Lowell R. R. Corp., 135 Mass. 418; Cariack v. Merchants Woolen C., 146 Mass. 182; Tuckham v. Sawyer, 153 Mass. 485; Sullivan v. India Mfg. Co., 113 Mass. 396; Baker v. Western & Atlantic R. R. Co., 68 Ga. 699; Bell v Western & Atlantic R. R. Co., 70 Ga. 566.

Powers Straup & Lippman and Jos. E. Page, for respondent.

This action was brought to recover damages for personal injuries received in the defendant's mine. The complaint, among other things, charges that the plaintiff was employed by the defendant to dig and haul ore out of the mine with a horse; that the defendant negligently furnished him a vicious, dangerous, unfit, and unsafe horse, knowing that it was unfit for such use, and knowing that the horse would strike, kick, bite, and plunge when hitched to cars; and that while the plaintiff was so hauling ore, unaware of the vicious character of the horse, and in the exercise of due care, the horse became unmanageable, violently struck him in the back with the forefeet, throwing him on the ground and track, and, suddenly plunging and starting, pulled the cars over and upon him, and caused the injuries of which he complains. The answer denies the allegations of the complaint, and avers that the injuries were caused by the plaintiff's own want of care. It appears from the evidence that, at the time of the accident, the defendant was operating its mine, and hauling the ore therefrom through a tunnel in cars pulled by a mare. The width of the tunnel was about 4 feet in the clear, and it was about 850 feet long, and straight for about 600 feet, to a point where a curve began. From this point it was down grade to its mouth. About 70 feet from the curve, towards the entrance of the tunnel, there was a place cut out, for a receiver, 4 feet from the side of the tunnel. There men using the tunnel could avoid the passing cars. On the 18th of April, 1896, the plaintiff commenced working for the defendant in its mine, in the place of an employe who had obtained leave of absence, and was to continue until the return of the employe. This arrangement was made with the consent of, and the plaintiff was accepted as a workman by, the foreman of the mine, who directed him in the employment, told him to get the horse, and showed him what to do. The foreman told him that the horse was "high-lived," but said nothing to him of its vicious and dangerous character, although it appears that both he and the superintendent of the mine had seen the mare balk, kick, and plunge when hitched to the cars, and the foreman had seen her springing forward and backward, and jerking the cars from the track. The plaintiff, while accustomed to handling horses, knew nothing of the vicious character of this mare, having never seen her before, and it appears he did not have much trouble with the horse on the first day, except that she threw the cars off from the track once by lunging, and so on the second day previous to the accident. On the occasion of the injury, which occurred on the second day of his employment, the plaintiff was leading the mare hitched to the cars in the tunnel, and another employe was attending to the brake. The stick, used for braking, broke, and the cars were stopped. When the plaintiff attempted to start again, the mare balked and lunged until a coupling hook, between the first and second cars broke, when the car ran against her, and she became unmanageable and vicious, biting, striking, and kicking, and the plaintiff was injured in the manner substantially as alleged in the complaint. It also appears that the front car at this time had just passed the receiver, and that the plaintiff was unable to get to a place of safety. At the trial a verdict was returned in favor of the plaintiff in the sum of $ 7,000, and judgment entered accordingly. Thereupon the defendant appealed.

BARTCH J., delivered the opinion of the court. ZANE, C. J., and MINER, J., concur.

OPINION

BARTCH, J.

The appellant contends that the respondent, at the time of the occurrence, was not its employe, and that it owed him no duty to acquaint him with the vicious character of the horse. It is true that the respondent was not one of its regular employes. The company, through its agent, however, entered into an arrangement, with one who was its employe, whereby the respondent was to enter into its service for a certain time in the place of such employe. Its agent was a party to the selection of this particular person so to enter its service. He was subject to its direction and control, and it had the right to discharge him at any time. When the accident happened he was performing labor in accordance with the orders and will of its agent. Under these...