74 Wash. 565 | Wash. | 1913
— On December $0, 1910, one Thomas Davies met his death in a coal mine operated by the respondent, the Rose-Marshall Coal Company. Davies was at that time an employee of the respondent, engaged in the work of running a shaft along the vein of coal. The appellant Anna Davies is the widow of Thomas Davies, and the appellant Conrad Arthur Davies is his son. The appellants conceived that the death of Thomas Davies was the result of negligence on the part of the respondent, and brought separate actions against it to recover damages for his death. For the purposes of trial, these actions were consolidated by the court, and tried as one action. On the trial, at the conclusion of the evidence, the respondent interposed a challenge to its sufficiency. This challenge the trial judge held to be well taken; but at the solicitation of the appellants, and that a new trial might be avoided if the appellate court disagreed with his conclusion, consented to submit the question of fact to the jury; announcing at the same time that, if the jury returned a verdict for the appellants or either of them, he would, on motion of the respondent, set the verdict aside and enter a judgment in favor of the respondent. The cause was thereupon submitted to the jury, which returned a single verdict finding in favor of the appellant Anna Davies for the sum of ten thousand dollars, and in favor of the appellant Conrad Arthur Davies in the sum of five thousand dollars. On the return of the verdict, the respondent moved to set the same aside, and for judgment in its favor notwithstanding the verdict. This motion the court granted, the court dismissing the action with prejudice. This appeal followed.
Before passing to the principal question suggested by the record, it is well to notice an objection made by the respondent to the statement of facts as certified into this court. In presenting their proposed statement of facts, the appellants did not adopt, as correct in its entirety, the transcript of the evidence made by the stenographer who took down the proceedings, but supplemented the testimony of certain wit
As indicated in the outline we have given of the case, the sole question presented by the appeal is the sufficiency of the evidence to justify the verdict. But before stating the evidence, it is well to recall that the action is one at law in which the appellants are entitled to the judgment of the jury on the weight and sufficiency of the evidence, and that the court is warranted in interfering with the verdict only in the case there is a want of substantial evidence on some matter in issue material to be established in order to justify a recovery. It is not enough that the evidence of the opposing side may seem to preponderate, or that the court may think it entitled to the greater credibility; these considerations may justify the trial court in granting a new trial before another jury, but they do not justify taking the case entirely from the jury and determining the questions in dispute as questions of law.
Turning to the record, it appears therefrom that the mine
Chutes nine and ten had been driven but a short distance above the counter when the accident to Davies happened. The operators of the mine were at this time working two shifts, the one began between 7 or 8 o’clock in the morning, and quit at 3:30 o’clock in the afternoon; the men usually stopping at 11 :S0 o’clock for some half or three-quarters of an hour for lunch. The second shift commenced when the first shift left off work. Davies, at the time he was killed, was working on the morning shift, and in chute eight. He went to
There were scratches and contusions upon Davies’ body, and his skull was fractured near its base. The miners, suspecting that he might have been overcome by gas, sought to resuscitate him, but without success. The body was taken to the surface and washed. The head, neck and shoulders were described by witnesses for the appellants as having a mottled appearance, the face and neck being cherry red. The blood, also, that escaped from the wound at the base of the skull was of the same bright red color, and did not coagulate for some considerable time after exposure to the air. The medical expert of the appellants testified that the cause of the death of Davies was poisoning from carbon monoxide gas. A miner whom the court allowed to qualify as an expert testified to the same effect. The respondent’s experts, on cross-examination, in answer to hypothetical questions embodying the facts testified to by the appellants’ witnesses as to the appearance of the body of the deceased, said that it presented the characteristic appearance of poisoning by carbon monoxide gas. Davies’ pick was found lying on a small body of loose coal at the face of chute eight. Some portion of his wearing apparel (not named in the evidence, but said in the appellants’ brief to have been his cap and lamp) were found about half way down the chute from his working place to the change in the angle of the chute.
Sometime prior to Davies’ death, the respondent started to drive a new working shaft from the gangway to the surface; starting it at a point between the existing air shaft and Davies’ working place. The workmen commenced in the gangway and drove two chutes, each about five and one-half feet square, to the surface. These chutes necessarily passed through the counter, and when opened at the top offered an escape for all the air forced into the mine, preventing it from circulating at the places where the mining was being carried on. To overcome this difficulty a device called an
There was evidence in the record contradictory of much that we have recited, especially as to the appearance of Davies after death and the amount of air in his working place. Other circumstances, also, were shown which would indicate that Davies might have met his death from another cause than from poisoning by carbon monoxide gas. We think, nevertheless, that the court wrongfully withdrew the questions of fact from the jury. It is clear to our minds that there was
The respondent cites and relies on the following cases from this court: Hansen v. Seattle Lum. Co., 31 Wash. 604, 72 Pac. 457; Armstrong v. Cosmopolis, 32 Wash. 110, 72 Pac. 1038; Reidhead v. Skagit County, 33 Wash. 174, 73 Pac. 1118; Stratton v. Nichols Lum. Co., 39 Wash. 323, 81 Pac. 831,109 Am. St. 881; Stone v. Crewdson, 44 Wash. 691, 87 Pac. 945; Peterson v. Union Iron Works, 48 Wash. 505, 93 Pac. 1077; Olmstead v. Hastings Shingle Mfg. Co., 48 Wash. 657, 94 Pac. 474; Whitehouse v. Bryant Lumber & Shingle Mill Co., 50 Wash. 563, 97 Pac. 751.
An examination of these cases will show, however, that in
The judgment appealed from is reversed, and the cause remanded with instructions to overrule the motion for judgment notwithstanding the verdict, and to proceed according to the usual course of practice to a final determination of the case.
Ckow, C. J., Main, and Ellis, JJ., concur.