252 F. 388 | 9th Cir. | 1918
Bowden recovered damages against his employer, the Gold Hunter Mining & Smelting Company, for personal injuries suffered oh September 4, 1915, while operating a drill in a mine belonging to plaintiff. The mining company brought writ of error.
Bowden, who was an experienced underground mine worker, testified to the effect that he was drilling in a stope where there was about 16 or 18 feet of muck, leaving just room enough to stand on the edge and drill; that he was drilling a cut hole, and started the steel in the drill, but that after a revolution or two it broke in the center, the machine gave him a kind of lurch, liis feet slipped, he struck on a boulder, and rolled down to the floor on the chute about 18 feet; that after he was injured he dragged his machine out, and the piece of steel was still in the end of the machine, and had been broken at a kind of an angle in the weld where the steel had been welded; that the weld was not completely together where it had broken from the jar, and that one end ran down probably about half or three-quarters of an inch into the weld; that he never had seen steel in an unwelded drill break in the middle, or right in the weld; that he thought the steel was sound, although he could have noticed the weld, but that he paid no particular attention to it at the time, but picked it up and used it; that the steel was delivered for the different machines after inspection by the tool sharpeners; that he had had steel drills which broke in use, some having broken in the chuck, and some right ahead of the
But, in accord with the pleading of the plaintiff, the court further charged that there was an issue upon the question whether the piece of steel which broke was unskillfully welded, and told the jury that if the plaintiff did not know that the steel was defectively welded, and if by the exercise of reasonable care the inspectors for the mining company should have discovered that the welded joint was weak, in that the weld was defective, then negligence could be attributed to the defendant company, and inquiry could be made whether or not the accident was the result of tire weakness in the steel.
We find no error in the submission of the questions referred to to the jury, or in the law as given by the court, particularly when it is observed that one of the witnesses called as an expert by the mining company testified that when steel breaks in the weld by his observation it is because of a poor weld.
The plaintiff in error contends that Bowden was guilty of contributory negligence; but we think the case called for the submission of the issue to the jury, and, as no exceptions to the charge upon contributory negligence were preserved by plaintiff in error, the point need not be dwelt upon.
“When the defense to an action is founded on a written instrument, and a copy thereof is contained in the answer, or is annexed thereto, the genuineness and due execution of such instrument are deemed admitted, unless the plaintiff file with the clerk, within ten days after receiving a copy of the answer, an affidavit denying the same, and serve a copy thereof on the defendant”
■ — and argues that Bowden never denied the execution or delivery of the release, and never tendered back the consideration paid .therefor. But the effect of failure to file an affidavit under the statute cited is merely to admit the genuineness and due execution of the release, and not to preclude tire plaintiff from taking a position in avoidance of tire
It would be a very strained construction to hold that plaintiff, a healthy man, in the prime, of life, dependent upon a calling which requires unusual physical strength, intended to accept $200 (all of which was paid by the indemnity insurance company to the hospital and physician, for attention to injuries received before the serious injuries to the leg and arm were developed.) as full compensation for the permanently helpless condition in which he evidently is. A fair construction of the evidence is that fhe release was made under the belief by both parties that there were no injuries other than those specified, and they were deemed not serious.
The release having no relation to the issues as reduced and submitted to the jury for consideration, the point that there should have been a tender back became irrelevant.
Finding none of the assignments well taken, the judgment is affirmed.
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