167 P. 675 | Utah | 1917
The respondent, a miner, was severely injured while in the employment of defendant corporation in one of its mines in Park City, Utah. His place of work was on the 600-foot level of what is known as the Alliance Tunnel. His mode of ingress and egress to and from his place of work was by means of a vertical double compartment shaft extending from the 500-foot level downward in which a cage was operated by an engineer - employed by the defendant company. The cage was operated by means of an electric engine controlled and manipulated by the engineer, whose place of work was on the 500-foot level, about thirty feet from the top of the shaft. A cage was connected with the engine by a steel cable, and it was the duty of the engineer, by means of the engine, to lower and raise the cage as might be necessary for the purpose of carrying men to and from their places of work on the lower levels of the mine. The cage in its downward course was controlled by the engineer by means of a brake and clutch. When the men were in the cage and ready to be lowered, they would give a signal to the engineer, who would release
“The court erred in overruling appellant’s objection made at the trial to any evidence being received in this action on the ground that the plaintiff failed to state a cause of action. ’ ’
*298 “The court erred in giving to the jury the following portion of instruction No. 6: ‘ The court instructs you in this case, as a matter of law, that the dropping of the cage in the manner shown by the undisputed evidence in the case occurred through the negligence of the defendant Johnson, and that for such negligence both defendants Johnson and the Mining Company are equally responsible to the plaintiff. * * ”
“The court erred in giving the jury the following portion of instruction No. 13: ‘The amount you are to award the plaintiff should not be diminished because of anything the physicians did or failed to da.’ ”
‘ ‘ The court erred in refusing to give to the jury the appellant’s request No. 1, which was as follows: ‘The court instructs the jury that under the undisputed evidence in this case the engineer Johnson was a fellow servant of the plaintiff, and that the defendant Silver King Coalition Mines Company is therefore not liable to the plaintiff for the injury which he sustained, and your verdict must be in favor of the defendant Mining Company.’ ”
While this is not a case of res ipsa loquitur, it is just as conclusive, and, if possible, more convincing and satisfactory, as proof of the fact.
The defendant Johnson was the company’s engineer. His duty, as disclosed, by the record, was to operate the cage for the purpose of carrying men and material to and from the lower workings of the mine. If the engineer kept control of the cage by properly using the brake and clutch, there was little or no danger. If, by inattention to these simple details, he lost control, disaster would result. His mind was not engrossed by attention to other duties. It was a position of grave responsibility, but the duties pertaining to it were so simple and free from complications as to render it almost impossible to fail in a proper performance of them, except through a want of care constituting negligence. The plaintiff, as before stated, on the occasion of the accident entered the cage to be lowered into the mine. The signal to lower was given to the engineer in the usual manner. He released the brake, but did not set the clutch. The result was inevitable. The cage, in which were the plaintiff and a fellow laborer, suddenly dropped to a depth of 110 feet, and, in the language of plaintiff’s companion, who was a witness, “smashed into the bulkhead” below. The plaintiff was, as before stated, severely injured. The only excuse offered by the engineer for failing to set the clutch was that “it slipped” his “mind”; in other words, he forgot it. He forgot to perform one of the most important duties that was ever imposed by a master upon a servant. There is no possible excuse in law for such neglect. The instruction of the trial court was, in effect, the only proper instruction that could have been given under the undisputed facts. It therefore became a question of law, and the court did not err when it
As already stated, after plaintiff was taken to the hospital his injuries were dressed by the physicians. The ends of the broken bones of his leg were brought together in apposition so they would knit. The leg was then placed in a plaster east. Other treatment was administered, but it is not pertinent here. After he had been in the hospital for several days under treatment, the attending physician was called to the hospital and found that the cast had been pushed down on the leg. The upper part of the leg was not in position. The attending physician called in another physician. They put a new cast on the leg and put the patient to bed without any weights on the limb. They decided if they put weights on they might lose the foot and the lower part of the leg. His nervous condition would not allow the use of weights, as the weights would be pulled one way or the other and he would be more likely to lose his leg. Instead of the bones being in apposition, as they were when first set, they had become displaced about two inches. They tried to replace the bones, but could not do it. They put on a new cast while the leg was in that condition. It would have required considerable force to pull the bones into position. They would have done more injury to the leg below than the overlapping of the bones would cause.
This brings us back to the particular question under review, Did the court err in instructing the jury that the damages to be awarded the plaintiff should not be diminished by anything the physicians did or failed to do ? The question arises, What did the physicians do to increase the injury? As far as the record discloses, they did nothing that could have had that effect. They found the plaintiff in a certain condition, for which they were not in any sense responsible. They found him with the cast slipped down and the broken bones lapping one over the other. They did their best, under the circumstances, according to their testimony. They put on a new cast in the condition the limb was in without effecting an apposition of the broken bones, and without attaching weights to the limb. This, they concluded, would be impracticable and exceedingly dangerous. So far from doing anything to
The next question is, What did the physicians fail to do that increased the injury? This question has already been answered. The testimony tends to show that all was done that could be done without making matters worse. We have the uncontroverted opinion of Dr. Browning and Dr. LeCompte, graduates of medical colleges and physicians of standing and repute. If their professional opinions as to what could be done, or what should have been done under the circumstances, were incorrect, they ought to have been controverted and the truth made to appear. But they were not, and their testimony and professional opinions stand in the record as uncontroverted facts. Unless, therefore, the law is such that a party who is responsible for an original injury may, nevertheless, be relieved from responsibility for an aggravation of that injury by accidental means, we cannot conceive how appellant in the case at bar can escape liability for whatever injuries the plaintiff has sustained. It is necessary, therefore, to give due consideration to the authorities cited by appellant in support of its contention.
Appellant cites the following eases: Secord v. St. Paul, M. & M. Railway Co. (C. C.) 18 Fed. 221; Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. Sullivan, 141 Ind. 83, 40 N. E. 138, 27 L. R. A. 840, 50 Am. St. Rep. 313; Eighmy v. Union Pacific Railway Co., 93 Iowa, 538, 61 N. W. 1056, 27 L. R. A. 296; York v. Chicago, Milwaukee & St. Paul Railway Co., 98 Iowa, 544, 67 N. W. 574; Atchison, T. & S. F. R. Co. v. Zeiler, 54 Kan. 340, 38 Pac. 282; South Florida R. Co. v. Price, 32 Fla. 46, 13 South, 638; Union Pacific R. Co. v. Artist, 60 Fed. 365, 9 C. C. A. 14, 23 L. R. A. 581; 4 L. R. A. (N. S.) 66, subdiv. 4; notes 17 L. R. A. (N. S.) 1168; Texas Central Railway Co. v. Zumwalt, 30 L. R. A. (N. S.) 1206; 40 L. R. A. (N. S.) 486.
Secord v. Railway Co., supra, is similar to the case at bar only in respect to the form of action. The plaintiff sought to recover damages for a personal injury. The question as to increased injury on account of negligence of the physicians
In Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. v. Sullivan, supra, the plaintiff sued the defendant direct for damages incurred by the alleged malpractice of a company physician in amputating his arm while treating him for an injury to his hand, which occurred while engaged in coupling ears on defendant’s railroad. The physician administered chloroform to the plaintiff under promise to him that he would not amputate his arm while under its influence. The original injury was apparently lost sight of entirely. There was no claim for damages on that account. The court held that if the defendant in that case used reasonable care in selecting a competent physician it was not responsible for his acts or omissions. This seems to be the law in a case of that kind, but it has no application to the facts of this case.
In Eighmy v. U. P. Ry. Co., supra, the plaintiff, a brakeman, while coupling cars on defendant’s road, had his hand crushed between the bumpers of the ears. He sued for damages on two counts — one directly for the injury pccurring in the accident;
York v. Chicago, Milwaukee & St. Paul Ry. Co., supra. In this case the plaintiff’s intestate was injured in a collision and was treated by a physician selected by the company. The injury proved fatal. Plaintiff sued for damages. The case was tried by a jury. At the close of the evidence the court directed a verdict for the defendant. Damages were claimed both on account of the accident and the negligence of the physician. Having found that the defendant was not liable for the accident, the court applied the ordinary rule that defendant was not liable for the negligence of its physicians if it used ordinary care in selecting reasonably competent persons.
Atchison, T. & S. F. R. Co. v. Zeiler, supra. In this case plaintiff’s intestate was injured in a railroad accident on defendant’s railroad and subsequently died. The action was for both the original injury occurring in the accident and for negligent treatment by the physician. As to the original injury, defendant was held not liable, as the injury resulted from the negligence of a fellow servant. On the question of negligent treatment by the physician, the court held in accordance with the usual rule; there being no allegation or proof that the physician employed was not competent or skilled in his profession, the company could not be held liable for his negligence.
“Was the company liable for the malpractice of the physicians or the carelessness of the attendants at the hospital, if that hospital was maintained as a charitable enterprise and not for the purpose of deriving prolit from it?”
The court decided it was not. The question put and determined by the court shows that the case has no application here.
The case and notes in 17 L. R. A.. (N. S.), 30 L. R. A., and 40 L. R. A. (N. S.) shed no light whatever on the question now under review. They are generally to the same effect as the cases we have examined.
In view of the facts found and opinion expressed before commencing a review of these cases, it was perhaps unnecessary to devote the time we have to their consideration. Our excuse for so doing has been promoted by a desire to make our position as clear and free from doubt as possible. Finding, as we do from the record before us, that the increased injury to the plaintiff was not due to his own negligence or willfulness, or to any intervening efficient cause, it follows as a matter of law, that it must be attributed to the original injury resulting from the negligence of the defendant. This being the view of the court, it is not necessary to review the authorities cited by respondent or the other assignments of error.
The judgment of the trial court is affirmed, respondent to recover costs.