Wooton v. Dragon Consol. Mining Co.

• Decision Date: 16 May 1919
• Docket Number: 3284
• Citation: 54 Utah 459,181 P. 593
• Court: Utah Supreme Court
• Parties: WOOTON v. DRAGON CONSOL. MINING CO

181 P. 593

54 Utah 459

WOOTON v. DRAGON CONSOL. MINING CO

No. 3284

Supreme Court of Utah

May 16, 1919

Appeal from District Court, Fifth District, Juab County; D. H Morris, Judge.

Action brought by A. Wooton, plaintiff, against the Dragon Consolidated Mining Company, a corporation, defendant, to recover damages for personal injuries. Verdict for plaintiff. Defendant appeals.

AFFIRMED.

Cheney Jensen & Holman of Salt Lake City, for appellant.

APPELLANT'S POINTS.

Actions of this character are based upon the existence of a status unless the relation of master and servant existed between plaintiff and defendant on August 3, 1916, plaintiff has no claim for damages against defendant. The burden of proving the existence of that status on August 3rd is upon plaintiff. It is not discharged by proving that some weeks before or some days before, plaintiff was in the employ of defendant. Marshall & E. T. Ry. Co. v. Sirman, 153 S.W. 405.

Parker & Robinson of Provo, and Willard Hanson of Salt Lake City, for respondent.

RESPONDENT'S POINTS.

Under what theory could it be said that Long was an independent contractor? Independent in what? Why, he could not even leave the work one day or one hour without the company deducting that day or that hour from his time. Every detail of the work was under the control and supervision of the company. Pottorff v. Fidelity Coal Mining Company, 122 P. 120.

BRAMEL, District Judge. FRICK, WEBER, GIDEON, and THURMAN, JJ., concur.

OPINION

BRAMEL, District Judge.

STATEMENT OF FACTS.

In speaking of the parties as actors in the case and in the court below, we shall refer to them as plaintiff and defendant. As actors in this court, they will be called appellant and respondent.

Plaintiff, in his complaint, in substance alleges that at all times in question the defendant owned and operated the mine in question, and that plaintiff was employed by defendant work therein as a "mucker"; that defendant negligently failed to make proper inspection of the roof and walls of the place where plaintiff worked, negligently failed to scale off or remove or timber up loose rock and earth, and negligently failed to warn plaintiff of the condition of said place, and that plaintiff had no knowledge or notice of said dangerous condition; that on August 3, 1916, while plaintiff was working in said mine in the employ of defendant, a rock fell from the "side or roof of said hole in which plaintiff was then working" and inflicted upon him the injuries upon which he bases this action.

Defendant denies each and every one of the above allegations.

Defendant alleges that at the time mentioned in the complaint the said mine was in the possession of, and under the control of, lessees of defendant, and denies that plaintiff was employed by defendant or worked in said mine for or under the control of defendant.

Further answering, defendant alleges that plaintiff's injury, if any, was proximately caused by his own negligence in going into his place of work prematurely, and without being required so to do, immediately after the firing of blasts in the raise above his place of work, and in failing to take any precaution to ascertain whether earth and rocks above him had been loosened by said blasts.

There is further answer, alleging that plaintiff assumed the risk, and that any injuries he received were caused by a fellow servant.

The evidence, of course, develops the facts of the matter in greater detail. It is not disputed that on or about May, 1916, plaintiff was employed by defendant to work in the Dragon mine, which mine was then owned and operated by defendant. Plaintiff worked in this mine largely, if not entirely, in the capacity of mucker from that time until he was injured. On August 3, 1916, while working in the mine as a mucker, he was injured by being struck by a piece of rock that fell from a place above him.

At the time of the accident the plaintiff was working in a large subterranean excavation called the "Gloria Hole." This "Gloria Hole" was an underground room as large as the "Nephi courthouse." It was approached from the outside by means of a tunnel. In the "Gloria Hole," in the face of a cliff therein and some twenty feet or so above the floor, was the mouth or entrance of an incline "raise" or drift extending upward into the mountain on an angle of about twenty-two degrees. Ore was being mined in this "raise" or drift. As the ore was blasted or broken down it would fall from the mouth of the raise to the floor of the "Gloria Hole" directly beneath the mouth of the raise, and there make a pile of ore from which muckers loaded the cars that hauled the ore to the bins.

On the night of the accident plaintiff was working on and around this pile of ore engaged in loading cars. A rock fell from the raise above and struck the pile of ore, where it broke into several pieces. One of the pieces of the rock struck plaintiff on the ankle.

Concerning the alleged negligence of the master, there is evidence to the effect that the rock in question came from the raise; that plaintiff was not working in the raise, but was working on the floor of the "Gloria Hole" below the mouth of the raise, and that his only protection from falling rock was the master's precaution in inspecting the raise and making it safe by scaling off or bracing up the loose rock therein. There is further evidence to the effect that a proper inspection of the raise would have disclosed the instability of a mass of rock as large as that which fell. There is evidence that the raise was inspected and sounded at six o'clock by a competent miner. The accident occurred after six o'clock. The evidence is conflicting as to whether another shot was fired in the raise after this inspection and before plaintiff was injured. So, also, the evidence is uncertain, if not conflicting, as to the exact time when plaintiff was injured. The jury found the issue as to negligence in favor of plaintiff.

Defendant contends that at the time of the accident plaintiff was not employed by or working for defendant, but was employed by and working for Ben Long. In support of this contention defendant offers a contract evidencing a lease of the right to mine ore given by defendant to Sutherland and Long. There is much evidence concerning this lease, proceedings thereunder, and modifications thereof. Many of the forty-eight errors assigned pertain to, or involve the effect of, this lease. Other facts will be stated in the opinion. The errors assigned will, in our discussion, be grouped according to principle invoked.

BRAMEL, District Judge (after stating the facts as above).

At the trial defendant, at the close of plaintiff's evidence, made a motion for a nonsuit. At the close of all the evidence defendant made motion for a directed verdict of no cause of action. In each of these motions, and in a motion for a new trial, defendant raises the points, among others, that no evidence was given of negligence on the part of the employer, and that the evidence shows that plaintiff assumed the risk.

It is argued that the rock came from the raise; that the raise had been inspected at six o'clock; that the accident occurred after the inspection; that the master fulfilled his duty, and that there is no liability. At the time the motion for a nonsuit was made only plaintiff's evidence was before the court, and it appeared therefrom that the miner, before the accident, went into the raise to inspect, and that he came down again after he had been up there twenty or thirty minutes. There is no direct evidence in this of any particular kind of an inspection. Nor, in the light of other evidence then in the record as to what actually happened, may the court presume or hold this to be evidence that a proper inspection, or any particular inspection, had been made. Felton v. Bullard, 94 F. 781, 37 C. C. A. 1; Gibson v. Ry. Co., 61 Wash. 639, 112 P. 919; Cunningham v. Ry. Co., 4 Utah 206, 7 P. 795.

At the close of all the evidence there was evidence in the record that Waters, the miner, did make an inspection of the ordinary and usual kind, and scaled off the walls and roof of the raise at about six o'clock. But this same Waters, who made this inspection, says that, after this inspection and before plaintiff was hurt, another blast was fired in the raise. The answer of defendant alleges, and the evidence of defendant is to the effect, that plaintiff met with injury by going to his place of work prematurely and immediately after the firing of blasts in the raise. The evidence of Waters tends to make the inspection which he said he made at six o'clock an immaterial fact, because, according to his account, subsequent blasts in the raise altered conditions before the accident. The evidence upon the question of negligence is conflicting. It is not within the province of this court to disturb the verdict of the jury in a case where the state of the evidence upon the given issue is such that reasonable men might differ as to the side upon which it preponderates. This court can pass upon the question of negligence only in clear cases. Davis v. D. & R. G. R. R. Co., 45 Utah 1, 142 P. 705.

It is solely the function of the jury to weigh the evidential effect of the facts before it, and to deduce therefrom such legitimate inferences as those facts afford. Arrascada v. Silver King Coalition Mines Co., 54 Utah 386, 181 P. 159 (decided this term); Johnson v. Silver King Con. Mining Co., 54 Utah 34, 179 P. 61 (decided this term); Miller v. Utah Con. Min. Co. , 53 Utah 366, 178 P. 771 (decided this term).

The evidence in this case makes it plain that plaintiff from his place of work could not inspect the raise, and that his only protection from rock falling therefrom lay in the care and...