76 F. 349 | 8th Cir. | 1896
The writ of error in this case was heretofore dismissed for want of jurisdiction in this court to hear and decide the case. 18 C. C. A. 572, 72 Fed. 299. It has since been restored to the docket in compliance with the provisions of an act of congress approved on February 8, 1896 (29 Stat. 6, c. 14), and is now before us for determina(ion on the merits. The action was brought by William N. Bush, the defendant in error, against Francis I. Cowen, sole receiver of the Choctaw Coal & Railway Company, the plaintiff in error, to recover damages for personal injuries which the plaintiff below sustained by reason of an explosion in a coal mine located at Hartshorne, in the Indian Territory. The mine in which the explosion occurred was being operated at the time by the defendant. Francis I. Cowen, in his capacity as receiver of the aforesaid company. The plaintiff, William N. Bush, was a common miner in the employ of the receiver, who had worked only 2Í¿ nights in the mine when the explosion occurred. The complaint on which the case was tried charged, among other things, as a ground for recovery, that when the plaintiff took service in said mine it was represented to Mm by the agents of the receiver who employed him that the mine
The first error that has been assigned for our consideration is that the trial court erred in failing to direct a verdict for the defendant below. The argument in support of this assignment is founded upon the claim that there was no evidence before the jury tending to show that the defendant had been guilty of any violation of duty, or that he was in any respect negligent. We think, however, that this point is untenable, and should be overruled. The record discloses that there was- evidence before the jury which tended to show that the plaintiff was a miner of some 10 years’ experience, who had always been accustomed to work in mines that did not generate gas in explosive quantities;, that he had been induced by an agent of the receiver, by the name of Gabe Gideon, to come from Calhoun, Mo., where he resided, to Hartshorne, in the Indian Territory, for the purpose of taking service in a new mine at that place which had recently been opened by the receiver, and was being worked both by night and by day, and that he had only arrived at said mine and taken service therein about three days before the explosion occurred; that representations were made to him at his home in Missouri, by the receiver’s agent, for the purpose of inducing him to come to Harts-horne, to the effect that the mine at that place was free from gas, and was perfectly safe, and that similar representations were made to him by the assistant superintendent of the mine after his arrival at Hartshorne, before he went to work. There was further evidence tending to show that the mine in question did generate explosive gas in considerable quantities; that this fact was known to the agents of the receiver who had immediate charge and supervision of the mine; and that the plaintiff was seriously injured by an explosion of gas in the mine, which took place about the middle of the third night that he worked therein, before he had become acquainted with its condition and the dangers incident thereto. As there was testimony before the jury tending to establish these facts, it is manifest that the court would have erred in withdrawing them from the consideration of the jury on the theory that they constituted no proof of culpable negligence. The doctrine is well settled and elementary that it is a master’s duty to notify his servant of any hidden defect in the place where the latter is expected to work which increases the ordinary risks of the employment, and to advise him of any latent danger which may attend the doing of any work which the servant
In this connection it will be as well to notice another error which is assigned to the action of the trial court in admitting testimony concerning the representations that were made to the plaintiff at Ms home in Calhoun, Mo., by Gabe Gideon, the receiver’s agent, to the effect that the mine where the plaintiff and his associates were expected to work was safe and free from gas. It is claimed by the plaintiff in error that the proof of these representations was inadmissible for the reason that Gabe Gideon had no authority to make them. It is not denied that he was authorized by the receiver to go to Calhoun, Mo., and solicit the plaintiff and some other miners to come to llartshorne for the purpose of obtaining employment; neither is it denied that his expenses for making that trip were paid by the receiver. The objection to the testimony is that he was not authorized to make a hiring contract, nor to make representations as to the condition of the mine in which the men would be expected to work. We think that this objection to the testimony is untenable. It being conceded that Gabe Gideon was authorized by the receiver to induce or solicit the plaintiff and other miners to go to Hartshorne for the purpose of obtaining work, and that his expenses in making the trip were paid by the receiver, it follows, we think, that it was within the apparent: scope of the agent’s authority to make representations touching the condition of the mine. Laborers who were thus’ solicited to go some distance from their place of residence into an adjoining state, in pursuit of a job, would naturally desire to know something about the character of the work at that place, the wages, that they would probably earn, and, if they w;ere to work in a mine, they would doubtless desire to know something about the condition of the mine and the risks that they would be likely to incur in working in it. They would naturally assume that the agent of the employer was authorized to give information with reference to such matters. We think, therefore, that the representations made by the agent touching the condition of the mine, as a means of inducing
It is further assigned as error that the trial court refused to give two instructions which were asked by the receiver, which instructions were to this effect: That two of the receiver’s employes, to wit, John Murphy and James Scarratt, were fellow servants of the plaintiff; and, if the explosion was occasioned by the negligence of either of these men in failing to discover the presence of gas in portions of the mine other than the place where the plaintiff was at work, then the defendant was not liable to the plaintiff for such neglect on the part of these men. A sufficient reason why neither of these instructions should have been given in the form in which they were asked is found in the fact that, in so far as the duty was devolved upon these men (John Murphy and James Scarratt) of going through the mine from time to time and inspecting it, and seeing whether it was free from gas, they were discharging a personal duty of the master which he owed to all the miners who were at work in the mine, and while discharging such personal duty of the master, these men were not fellow servants of the plaintiff, no matter what relation they may have occupied towards him when they were engaged in the performance of other and different duties. An obligation rests upon the master to exercise ordinary care in providing a reasonably safe place for the servant to work, and also to use ordinary diligence in keeping it thereafter in a reasonably safe condition. This is a personal duty of the master, which he cannot devolve upon another in such a way as to relieve himself from liability in case the duty is not performed or is discharged in a negligent manner. Railway Co. v. Jarvi, 10 U. S. App. 439, 447, 3 C. C. A. 433, 435, and 53 Fed. 65, 67, and cases there cited. Moreover, as this court, speaking by Judge Sanborn, said in that case:
“The care and diligence required of the master are such as a reasonably prudent man would exercise under like circumstances in order to protect his servants from injury. They must be commensurate with the character of the service required, and with the dangers that a reasonably prudent man would apprehend under the circumstances of each particular case. Obviously, a far higher degree of care and diligence is demanded of the master who places his servants at work digging coal beneath overhanging masses of rock and earth in a mine than of him who places his employe on the surface of the earth, where danger from superincumbent masses is not to be apprehended.”
It is evident, we think, that the instructions in question were faulty, and ought not to have been given, for the reason that they exempted the receiver from responsibility for the negligent performance of one of his personal duties, to wit, the duty of properly inspecting the mine, and seeing that it was kept in a reasonably safe condition.
Some other errors have been assigned, based on the ground that the trial court erred in refusing to give several instructions which were asked by the defendant below, but were not given in the precise form in which they had been formulated. Without setting out these instructions in detail (which would subserve no useful purpose), it is sufficient to say that we have examined them in connection with the charge which was given by the trial court, and in view of such comparison we are satisfied that, in so far as the several instructions in question stated correct propositions of law, they were substantially
The only other assigned error which we deem it necessary to notice is an exception which was taken to certain remarks that were made by counsel for the plaintiff below in his closing address to the jury. That portion of the argument to the jury to which an exception was taken, and the exception itself, appear in the record in the following form:
“‘Now, as to the question of damages. There can he no question as to our right to recover. What is to he the damages? We have sued for $10,000. That sounds to us, of course, like a pretty good sum, hut is there money enough in the depths of the earth, have the mines ever produced enough wealth, to compensate a man for being placed in the condition of this man? Twenty-nine years of age, strong, vigorous, a happy hushand of a loving wife, the father of two fine children, called upon to support himself and his family by the labor of his hands and the sweat of his face, with no earthly power by which he could support himself, placed in the condition he is in, besides the mortification of having to go disfigured as he is through life. Now, I am not a very good-looking man. I sometimes wish I were; yet I would not have that little good looks I have taken from me, and be compelled to totter through life disfigured, distorted, crippled, — I can hardly use terms strong enough,— like this man. is, for all the gold in the world. He has a right to be paid for his mortification; he has a right to be paid for his mental suffering; for his physical suffering; for the suffering that was endured by the frying and the sizzing and the burning of his flesh upon that occasion; for every hop that he makes upon his poor, lame leg; he has a right to be paid for every scar upon his body; for every minute of time he is thrown out of employment; for the mental suffering that has been put upon him by this company. The mortality table shows that he has an expectancy of life of 36 years. The proof shows that he is totally disabled for working, and, at the rate of $2.00 a day for that length of time, would make twenty-two thousand and some hundred dollars he would be entitled to under the proof. But, say he is not totally disabled, that he has one-half the power he had before this terrible thing came upon him, and you have over $11,000, nearly $12,000, to say nothing of the suffering to his body and the mental suffering .of his mind. This is an easy thing, and you can count it up for yourself. We say the amount sued for is reasonable, and we ask you to give us the whole amount. We believe we are entitled to it, and shall feel disappointed if we do not get it.’
“To which language of counsel for plaintiff, defendant objected as improper and prejudicial to the defendants, and a.s not stating the legal and proper rule for the measure of damages.”
There are several reasons, we think, why this exception is not sufficient to warrant a reversal of the judgment. In the first place, the exception as taken goes to all that was said in the paragraph above quoted, and very much of what was thus said did not transcend the limits of legitimate argument to a jury. Counsel was entitled to comment on his client’s condition, the nature and extent of his disabilities and sufferings, and to impress upon the minds of the jurors the inevitable effect of the injuries that had been sustained. To this extent, no doubt, the remarks made by counsel were in the line of his duty, and not subject to criticism; and we have heretofore held, following a well-settled rule on that subject, that in stating an exception to a charge, some portions of which are correct and some incorrect, the exception, to be tenable, must point out the particular error complained of, and not be addressed to the charge
It results from what has been said that we And no material error in the proceedings of Hie trial court, and the judgment of that court is accordingly affirmed.