20 S.D. 399 | S.D. | 1906
This is an action to recover for injuries sustained by the plaintiff while employed in the defendant’s mine. The jury returned a verdict for $10,000, judgment was entered thereon, defendant’s application for a new trial denied, and this appeal taken.
The issues involved are thus stated by the learned circuit court in .its charge to the jury, to which statement no exception was taken : “That the defendant company had in operation for some time prior to October 22, 1901, and up to within a few minutes before the injury of the plaintiff, certain machinery for the purpose of supplying air to the point where-this plaintiff and others were working, which machinery is commonly called an air compressor, and which machinery also operated the pumps for the purpose of raising the water from the bottom of the shaft; and while the plaintiff and others were working in said shaft, the said machinery, which was insufficient in capacity and by reason of the negligence and carelessness of the defendant, its agents, and employes, became out of order in such manner as to fill said mining shaft with gas and heat, thereby burning the body of this plaintiff in such a manner as to cripple him for life, thus preventing him from earning a living at manual labor, and causing him great mental and bodily pain and suffering to his damage in the sum of $20,000. The defendant answering plaintiff’s complaint, admits that it is a corporation, and was at the time mentioned in the plaintiff’s complaint transacting business upon its-property at Keystone, in said county and state, and was using in the prosecution of its business certain machinery and workmen, and among the workmen employed was the plaintiff, but it specifically denies that the plaintiff has been damaged in the sum of $20,000, or in any other sum whatever, by 'reason of the acts complained of in his complaint, and denies that it is, in any way, accountable for any injuries which were received by the said plaintiff at the time mentioned in plaintiff’s complaint. It further denies that the-said injuries, if any were received by plaintiff were caused by the-negligence, carelessness, or fault of the defendant, its agents, or-
It is contended the court erred in overruling defendant’s objection to the following question propounded to one of plaintiff’s witnesses on his direct examination: “Q. In order to communicate from the bottom of the winze to the Keystone Mill, for instance, what would be necessary? (The defendant objects to the question as incompetent; objection overruled, and defendant excepts.)” The contention is untenable: (i) Because the objection was insufficient to justify a review on appeal; (2) because, if there was error in the ruling it was harmless, the same facts having been testified to by another witness without objection. State v. LaCroix, 8 S. D. 369, 66 N. W. 944; Mathews v. Silvander, 14 S. D. 505, 85 N. W. 998; Muller v. Flavin, 13 S. D. 595, 83 N. W. 687. This question was asked by the plaintiff of one of his witnesses: “Q. Did you observe the condition of the receiver and the pipe running from the receiver to the mine at that time, and if so1 in what condition did you find it? By Mr. Bennett .(attorney for defendant). Q. How long was. this of which you are speaking prior to the time of the alleged accident in the mine? A. Well, as near as I can come to it, it was two weeks. Defendant now objects to the testimony as to the condition of the machinery at that time or any opinion expressed by the witness on the condition of the machinery two weeks before the alleged accident. Testimony must show the condition of the machinery at the time of the accident. Objection overruled. Defendant excepts. A. It was red hot.” The answer was not responsive ; there should have been a motion to strike out on that ground; and, moreover, the time was not so remote as to render the evidence inadmissible. There was no reversible error in respect to this ruling.
Plaintiff’s instruction No. 6, was as follows: “You .are instructed, gentlemen of the jury, that it is the duty of the master, in this case the defendant, the Holy Terror Mining Company, to* fur
“The court erred in giving instruction No. 6, requested by the plaintiff. Por the reason that said instruction is misleading'm this that plaintiff’s right to .recover is based upon the negligence on behalf of the defendant, without informing the -jury that even under all the circumstances supposed in the instruction the plaintiff should be found without fault or negligence on his part and since there is no other instruction given by the court, that can be 'reasonably taken to cure the defect above specified in said instruction No. 6.” Presumably this assignment corresponds with the specification of error relating to the instruction in the bill of exceptions or statement of the case upon which the motion for a new trial was based, otherwise no objection to the instruction was preserved, and no other ground of attack than the one assigned is now available. Hedlun v. Mining Co., 16 S. D. 261, 281, 92 N. W. 31. It is not tenable for the reason that the court was not required to cover every phase of the case in that particular instruction, and in another portion of its charge the jury was instructed that “every one is responsible, not only for the ,result of his own unlawful acts, but also for any
The contention that the court erred in giving plaintiff's instruction No. 9 is clearly untenable for the reason that substantially the same instruction was given on request of the defendant.
There being no available objections to the charge, the next inquiry is whether the evidence, considered with reference to the issues submitted to the jury, was sufficient to justify a verdict for the plaintiff. If the jurors understood and obeyed the court's instructions they must have been satisfied that the plaintiff was without contributory fault and that the defendant was negligent with respect to the selection of its employes, the equipment of its mine, or the condition of its appliances. We think the evidence disclosed no want of care in the selection of employes, but as to the character and condition of defendant’s appliances there certainly was at least room for differences of opinion by equally intelligent and impartial persons. When the accident occurred, theplaintiff with other employes, was working in a winze which extended in a nearly vertical direction about ioo feet down from the tenth level. The drills, pump, and hoist were operated by means of an air compressor. •
Concerning what occurred at the time of the accident, the plaintiff testified: “All four of us were there at work when we discovered the g'as was escaping. Andy Miller remarked something about bad air, and I do not know what it was. The sensation produced was real warm and hot and oppressive, and affected our breathing-. When I found that gas was escaping, I cranked the machine down as tight as I could, and we all got on the bucket. The bad air seemed to be escaping from the machine and pump. The air looked misty and didn’t look like it always did. I do not remember anything about the heat, just remember that it was hot there. We all got on the bucket and rung three bells, and he hoisted us up to this i8-foot and stopped and we stood there and rung six or seven times more, and I do not know how many times; per
Charles Stevens, an experienced engineer, called as a witness by both parties, testified:. “This machine went foul or took fire about six weeks before the 22nd of October, 1901. At the time it took fire there was some indication of escaping gas in the mill there. One of the valves hung up, and it came back through the receiver. The compressor shoved the valve back, and it refused to go back and then that left a free opening; the intake port was open, and that left direct communication, and it went out through the intake pipe, and the gas escaped in that way. The gas had got to go ’out with the pressure and whichever way the pressure goes the gas goes. * * * So that if the machine is running in that condition it will pump the gas and hot air into the mine.”
The deposition of Thomas J. Whalen, offered on behalf of the plaintiff, contained these statements. . “My business is engineering and have followed it nine years. * * * I remember the accident at the mine October 22, 1901. I was not present at the time. I saw .some of the dead men. I. remember the accident in which Miller, Polman, and Crouter were killed and Minot Davis was injured. Prior to that time I had occasion to examine the engine and air compressor used to supply the men with air, and to run the drills, pumps and hoists. * * * It was about two' weeks before the accident ; it was in a very dangerous, careless condition. It was full of corroded burnt oil-. The ports were all burnt with corroded oil. The valves were badly burnt with corroded oil caused from the oil and fire; the valves and springs we had to use a sledge hammer to .get them out; the receiver was very badly burnt, also the pipes to the receiver. That is about the case so far as I know. The superintendent of the mine.s, Mr. Trengrove, employed me to examine this machinery. I overhauled the pipes leading to the receiver, and I overhauled the air end of the compressor. Also- disconnected one
Charles Stevens recalled for further cross-examination, stated: “I spoke in my direct examination about repairing this compressor some weeks before October 22, 1901. Mr. Trengrove knew that she had gone foul; he was right there immediately after it caught fire. I operated the compressor after this repair. I talked with Trengrove about it. As to the condition of the machinery I told him that the compressor was in a very poor shape at that time, and he ought to arrange it in some way to stop an hour every day at noon until we got her in first-class siiape again. The proper thing to have done with it would have been tO' take out the valves until we were sure that they were in proper working shape; clean the valves after the thing- had caught fire the first time; it had an effect on the valves to make them stick in some way. He didn’t give any orders at all, except one day he called me to^ stop for an hour. I was under the directions of the superintendent in that matter.”
So there was ample evidence tending to show that the compressor was not kept in a reasonably safe condition; that its condition was known to defendant’s superintendent, who was not a fellow servant of the plaintiff’s; and that the superintendent neglected to take proper precautions to prevent such accidents as the one causing the plaintiff’s injury. Was the plaintiff shown to have been guilty of contributory negligence? In determining whether or not a plaintiff has been guilty of such contributory negligence as will defeat a recovery, his actions must be measured by the actions of an ordinarily prudent man, under the same circumstances and in the same position. Heckman v. Evenson, 7 N. D. 173, 73 N. W. 427.
Finally, it is earnestly insisted. that the verdict should be vacated and a new trial granted because of “excessive damages appearing to have been given under the influence of passion or prejudice.” The measure of damages, in such actions as this, is the amount which will compensate for all the loss or harm suffered by the plaintiff, in person or property, proximately caused by the breach of defendant’s obligation, whether such loss or harm could have been anticipated or not. Rev. Civ. Code, §§ 2287, 2312. The legislature has -wisely refrained from attempting to fix any precise and definite rule. Within the limits of compensation for proximate detriment the amount recoverable must depend upon the circumstances of each peculiar case, and is left to the good sense and discretion of the jury. In making the estimate the jury should take into consideration the age and condition in life of the plaintiff, the physical injury inflicted, the bodily pain and mental anguish endured, all expenses incurred in the treatment of the case, and any and all damages which it may appear from the evidence have resulted or will result irom the injury. Whether the injury is temporary or permanent, and whether a capacity to earn money has been reduced by the .accident,' may also be taken into- consideration. 13 Cyc. 137. And when .the amount has been so ascertained it must stand, though the court might, as a juror, have awarded a different sum. But the estimate must express the honest judgment of fair-minded men, and if the recovery is so- excessive as to clearly indicate that it was given under the influence of passion or prejudice, a new trial should be granted in order that the estimation may be made by a competent tribunal. Rev. Code Civ. Proc. § 301, subd. 5; Murray v. Leonard, 11 S. D. 22, 75 N. W. 272. In the case at bar it must be presumed that the jury was properly instructed as to the measure of damages. It must also be presumed that the jurors were free from passion and prejudice unless there .is sufficient difference be
The judgment and order appealed from are affirmed.