4 Utah 206 | Utah | 1885
The defendant and appellant is the owner of a coal mine in Summit county, known as the Grass Creek coal mine, which it was working in February, 1882. On that date the plaintiff was in the defendant’s employ as a coal miner, and in order for him to get to his work he was compelled to pass through a drift or gangway. The plaintiff claims that this drift or gangway was carelessly constructed by the defendant, and that the defendant had negligently failed to secure the sides, roof and pillars by timber or otherwise and that it was unsafe, which fact was known to defendant. The defendant in its answer denies all this.
On the trial in the court below the plaintiff secured a verdict of five thousand dollars, and thé case is brought here for review on appeal from the judgment.
The testimony on the part of the plaintiff tended to show that the mine in question is run down upon an incline of thirty or thirty-five degrees. That after the incline runs down two hundred feet the first level is reached, from which gangways extend east and west. Two hundred feet farther down the second level is reached with similar gangways. In February, 1882, the east gangway on the second level extended about one thousand feet. Along this gangway are rooms which are numbered. The gangway is about ten feet high and about eleven feet wide. Just previous to February, 1882, the plaintiff had 'been assigned to work as a miner in one of the rooms of the east gangway. The foreman gave him work to perform; and he was paid by the yard for mining the coal.
On the last day of January plaintiff had completed his job, and on the evening of February 1 he went down for the double purpose of seeing his work measured and of obtaining a new job. F.eeling tired from taking down some heavy drills, he sat down, with two others, to rest by the mouth of the room in which he had been at work, with his back against a pillar. A large quantity of coal fell on him from the pillar, which crushed his leg and badly injured his spine. The testimony also tended to show that if the gangway had been protected by timbers the accident
The plaintiff had no knowledge that the gangway was unsafe, and he testified that in coal mines the miners rely upon the company to make the gangway safe. It appears that the company was engaged in “robbing” the pillars that supported the roof, that is, taking coal from the pillars.
The side of the mine where the plaintiff was working was undergoing what is called a “crush.” The weight of the roof was crushing the pillars. It is usual to leave the pillars about one-half. That is, the pillars are left the same size as the entrance between; but in this mine the pillars had been robbed until they were but little more than one-third.
The defendant claimed that everything had been done that was required to make the mine safe; that the mine had been managed with care and fully inspected day by day.
I. The first point made by the learned counsel for the defendant, is, that the evidence was insufficient to justify the verdict; that no negligence was shown on the part of the defendant. There is evidence in the record tending to show that if the walls had been timbered the accident would not have occurred, and that if the defendant had exercised reasonable diligence it would have discovered that the roof was unsafe. The accident occurred in a gangway used as a highway in going to and from the workings of the mine, and as a place of resort for safety when blasts were made. The plaintiff had nothing to do with inspecting the gangway. The testimony on the part of the plaintiff shows that it was the duty of the defendant to see that it was safe. The fact of the coal falling-in the manner it did, a thing not ordinarily happening, as the record shows, if reasonable diligence is employed in inspecting and keeping the gangway safe, would raise a presumption of negligence on the part of the defendant. Whenever it is a defendant’s duty to keep premises in a proper condition, as it respects persons passing, and these are out of condition, and an accident happens, it is in
It was, therefore, proper for the jury, in view of all the facts, to find whether the defendant had been negligent or not. Under our system of jurisjuudence it is the province of the jury to pass upon the facts. It is not only their privilege, but their right, to judge of the sufficiency of the evidence introduced to establish any one or more facts in the case on trial. The credibility of the witnesses, the strength of their testimony, its tendency, and the proper-weight to be given it, are matters peculiarly within their province. The law has constituted them the proper tribunal for the determination of such questions. To take from them this right -is but usurping a power not given. The jury should be left entirely free to act according to their own j udgment. When there is a total defect of evidence as to any essential -fact, or a spark, a scintilla, as it is termed, the case should be withdrawn from the consideration of the jury; where, however; the evidence intro
II. The next point made by the respondent is that the plaintiff was guilty of contributory negligence in sitting down where he did in the mine. It is conceded that he had a right to pass along the gangway in the ordinary course of business, but it is contended that he had no right to lounge there. It will be remembered that the plaintiff had come down into the mine for a double purpose; first to have his work measured, and second to secure a new job.
He had reached the mouth of the room where he had been at work and sat down to await the arrival of the foreman. He was there on legitimate business, and he had a right to sit down and wait. The gangway was supposed to be kept safe by the company. He was unaware of any defect in it, and we do not think such negligence was shown on his part as to bar his recovery. The most that can be said is that reasonable minds might differ as to whether he was negligent or not, and the question would therefore have to be determined by the jury.
III. The court below permitted the plaintiff to exhibit the injured foot to the jury and this is alleged to be an error. While, of course, the trial court should be careful and not allow improper matters to be brought to the attention of the jury, the exhibition of the injured foot can hardly be called improper, for, as was said in the case of Mulhado v. R. R., 30 N. Y. 370: “Such exhibition certainly tended to make the description of the injury more intelligible, and it cannot be supposed that it could have
IY. Another point made is, that if negligence was the cause of the injury, it was the negligence of the foreman, a fellow-servant of the plaintiff. The foreman had the entire charge and superintendence of the mine underground. Notice to him was notice to the company, and his neglect was the neglect of the Company: Brabbits v. Chicago, etc., R. R. Co. 38 Wis. 289; Malone v. Hathaway, 64 N. Y, 5-9: Mullan v. Philadelphia R. R. Co., 78 Penn. St., 25; Hofnagle v. N. Y. C. R. R. 55 N. Y. 608. The testimony shows that it was the duty of the defendant to keep the gangway safe; that the plaintiff had nothing to do with the gangway, and that he was unaware of the existence of the overhanging coal. It being the defendant’s duty to exercise reasonable diligence in keeping the gangway in a safe condition, it could not absolve itself of that duty by delegating it to others: Cooley on Torts, 549, 557, 560; Hough v. R. R. Co., 100 U. S. 213; Corcoran v. Holbrook, 59 N. Y. 517; Holden v. Fitchburg R’y Co., 37 Am. Rep. 343, 348, 349; Indianapolis, etc. R. R. Co. v. Flanigan, 77 Ill. 365; Chicago & Iowa R’y Co. v. Russell, 33 Am. Rep. 54.
This point was very carefully considered by this court in the case of Bowers v. Union Pacific Railway Co., post p. 215, and it was there held, that when it is the duty of a master to furnish sound material and machinery, and defective machinery causes an injury to a servant, the rule which exempts the master from liability for injury to a servant, caused by the negligence of a fellow-servant, does not apply. The negligence is that of the company, and not of a fellow-servant. The principle thus laid down ap
Por tbe court, under tbe facts of tliis case, to have charged tbe jury, as requested by tbe defendant, tbat if tbe accident was occasioned by tbe negligence of tbe foreman, tbe plaintiff could not recover, would bave been error: Chicago & Milwaukee R. R. v. Ross, 112 U. S. 337; Moore’s Admr. v. R. R., 49 Am. Rep. 401; R. R. Co. v. Swansen, 49 Am. Rep. 718.
V. The plaintiff’s complaint alleges that “the defendant so negligently and carelessly dug, constructed and kept said gangway, by its negligent failure to timber or otherwise secure tbe sides, roof, walls and pillars or supports thereof, tbat tbe same was, at tbe time of the injury hereinafter mentioned, dangerous and unsafe; all of which tbe defendant then and there knew, and of which plaintiff was then and there ignorant.” Tbe defendant argues tbat, under this allegation, tbe court permitted tbe plaintiff to show tbat tbe cause of tbe accident was tbe stripping of tbe pillars, which so weakened tbe support tbat there was a general “crush” in tbat part of tbe mine, which caused the injury.
The testimony, the defendant claims, was improperly admitted under the pleadings. The answer to this is, that if the plaintiff could show that the pillars were. insufficient to support the weight upon them, then it became the duty of the defendant to do what a prudent man would do, proceed to timber the walls and roof. Besides, under a general allegation of negligence, the circumstances constituting it may be proved, even though other circumstances particularly specified in the complaint are unproved: Abbott’s Trial Evidence, 583; Edgerton v. N. Y. R. R. Co., 39 N. Y. 227.
VI. The case was properly left to the jury to determine, as a question of fact, whether or not the plaintiff was guilty of negligence, or whether the injury was caused by the negligence of the defendant: Bowers v. Union Pacific Railway Co., post p. 215; Davis v. Utah Southern R. Co., 3 Utah 218; 2 Thompson on Negligence, 1010, 1011, 1012, 1015;
We find no error in the record, and the judgment, therefore, is affirmed, with costs.