99 P. 142 | Mont. | 1909
delivered the opinion of the court.
This action was brought by the heirs of William Hollingsworth, Sr., against the Davis-Daly Estates Copper Company and others to recover damages for the death of William Hollingsworth, Sr., claimed to have been caused by the negligence of the defendants.
It is alleged in the complaint that the appellant company was operating the Silver King mine, in Butte, and that Hollings
The appellant company by its answer denied each of these allegations and alleged, as affirmative defenses: That Hollingsworth had full knowledge of the condition of the shaft and of its dangerous character; that appellant had, prior to the third day of October, 1906 (the date of the death of Hollingsworth), used reasonable care in the repair of the shaft and had placed it in a reasonably safe condition; that it had no notice or knowledge that the shaft had become out of repair or dangerous, until the fourth day of October, 1906; that, if the shaft became dangerous or defective on the evening of the third day of October, 1906, the same was unknown to appellant; that Hollingsworth had full knowledge of the condition of the shaft and the fact that it had become dangerous on the evening of October 3, 1906, and prior to the alleged accident, and told various men working with him for appellant of its condition and advised them to notify appellant thereof immediately on the morning of October 4, 1906, and that, with full knowledge of the dangerous condition of the shaft, Hollingsworth voluntarily continued his work as engineer without any objection, and thereby assumed all risk; that it was not necessary for Hollingsworth to approach the shaft in the performance of his
Upon the issues thus presented, a trial was had in the district court of Silver Bow county, which resulted in a judgment in favor of the plaintiff and against appellant company and judgments in favor of the other defendants. The appellant company made a motion for a new trial, which was overruled, and it now appeals from the judgment and the order overruling its motion for a new trial.
Upon the trial plaintiffs introduced evidence tending to show: That on October 3, 1906, Hollingsworth, Sr., was employed by the appellant as a stationary engineer in the company’s engine-room at the Silver King mine; that appellant had erected a toilet-house near said engine-room for the use of its employees; that under the way to this toilet-house, and about twenty feet from the engine-room, existed a shaft about one hundred feet deep; that, prior to Hollingsworth’s going to work for appellant, defendant had retimbered the upper part of the shaft, covering it with boards and dirt; that on the evening of October 3, 1906, at about nineteen minutes to 11 o’clock, Hollingsworth left the engine-room, saying that he was going to the toilet; that the next time Hollingsworth was seen he was discovered dead at the bottom of the shaft; that the shaft had caved from the surface all around the collar, and the timbers below the collar set had fallen into the shaft.
Plaintiffs’ witnesses Murphy and Hoadley testified that there were no timbers in this old shaft, except for the upper ten feet; but witness SuttoD testified that the shaft had been timbered from the bottom since 1898; that he went down this shaft in
At the close of plaintiffs’ testimony, appellant moved for a nonsuit, which motion was overruled. Appellant then introduced evidence tending to show: That the old shaft was not covered when it took possession of the property, but that it at once covered the same with planks; that some time prior to October 3, 1906, appellant’s foreman went down the shaft and found it in a safe condition, except as to the first set of timbers; that he made a thorough examination and then bulk-headed the upper part|of the shaft with timbers eight inches by eight inches; that he put in one new set and timbered it solid, covering it with two-inch plank. This witness testified that where, in the two top sets, the old timbers were decayed, they were replaced with new timbers; that before the shaft was closed up it was put in good condition; that when the witness went down the shaft it was for the purpose of seeing if it was safe; that the foreman inspected the shaft about 4 o’clock P. M. of October 3, 1906, and found everything was all right.
The learned counsel for the appellant state in their brief that there are three important questions involved in the appeal, as follows, as they claim: (1) The complaint does not state facts sufficient to constitute a cause of action; (2) the record contains no evidence of the negligence alleged in the complaint; (3) the record discloses no evidence that Hollingsworth’s death was the proximate result of any negligence or other act of appellant. We shall examine the questions in the foregoing order.
1. It is contended that there is no allegation in the complaint that the defendant had knowledge of the dangerous condition of the shaft. The allegation is that the shaft was old, abandoned and insufficiently timbered. The natural deduction from this allegation is that the shaft was no longer used for the pur
In the complaint before us there is an allegation that the defendant negligently permitted the way from the engine to the toilet-room to become unsafe and dangerous, and negligently left the ground for three or four feet on every side of the timbers loose, unstable, and of inadequate cohesiveness to sustain the weight of an ordinary man, and negligently put good boards across the timbers, thereby inviting the deceased to cross over,.
2. The second claim of the appellant is that there is no evidence in the record of the negligence alleged in the complaint. The allegations of the complaint are quoted above. They are specific. Was it error for the trial court to allow plaintiffs to introduce evidence that steam was injected into the abandoned shaft through the exhaust pipe from the engine, or should that testimony have been excluded as comprehending a ground of negligence not pleaded? We think the testimony was properly admitted. This testimony discloses somewhat of uncertainty as. to when the steam was first turned into the shaft. Probably it was after the deceased entered the employ of the appellant. Assume that it Avas. Plaintiffs allege that the shaft was in surrounding loose dirt and decomposed granite. They then proceed to charge — and this, in the light of the testimony, is the substantial grievance complained of — that the ground for three or four feet on every side of the timbers was negligently left loose, unstable, and of insufficient cohesiveness to sustain the Aveight of a man. The question of negligence, as arising from the condition in which the surrounding ground was left by the-appellant, could only be solved by an inquiry as to what useAvas to be made of that portion of the property. If, for instance, the place was one that was not thereafter to be used or-where no employee had any necessity or was permitted to go,, then the same degree of care would, probably, not be required of the defendant in protecting the mouth of the shaft, as would be the case under the conditions disclosed by this record. Plaintiffs particularly allege that deceased was invited to confide in the strength of the earth about the shaft. If the shaft had been in solid granite, the action of the steam would probably-
The case of Freeman v. Sand Coulee Coal Co., 25 Mont. 194, 64 Pac. 347, presents practically the same principle as that involved in this ease. The plaintiff in that case alleged that the roof of a coal mine was unsafe and liable to fall and that the defendant negligently failed and neglected to brace or prop the same. The evidence showed that, while an engineer’s assistant was engaged in cutting out a piece of slate from the roof, with a pick, in order to find substance sufficiently solid to hold a plug, he knocked a prop out from under the piece of slate upon which he was at work, “and the whole thing came down.” This court said: “It was for the jury to find from the evidence whether or not negligence of the defendant in leaving the roof in an unsafe condition, concurrently with the act of the assistant, caused the caving in of the roof to the injury of plaintiff; and we think that the allegations of the complaint would support a finding that negligence of the defendant was a proximate cause, — if the jury should believe the evidence sufficient to warrant them in arriving at such a conclusion. * * * It was for the jury to determine whether the defendant might, from knowledge of the condition of the roof, have reasonably anticipated, or with the exercise of reasonable care and prudence might have lmown, that the roof was in such a condition as to give it reasonable grounds for anticipating the very consequence which did happen concurrently with the attempt to place the
We are also of opinion that any testimony that tended to prove that the earth, as left by the appellant about the collar of the shaft, was loose, was competent testimony, and, if that fact could be proved by showing the effect of the steam that was actually injected into the shaft, then plaintiff was entitled to make such proof. The turning in of the steam was one of the circumstances surrounding the matter under investigation and tending to substantiate the allegation that the defendant “negligently permitted the said way to remain in this unsafe and dangerous condition until the death of William Hollingsworth, Sr.”
3. Does the record contain any evidence that Hollingsworth’s death proximately resulted from any negligent or other act of the appellant Í Under the above interrogatory, it is argued that there is no evidence that the acts of the appellant, alleged and proven, were the proximate cause of Hollingsworth’s death. The principle invoked in the o following eases is confidently relied on, viz.: Shaw v. New Year Gold Mines Co., 31 Mont. 138, 77 Pac. 515; Olsen v. Montana Ore Pur. Co., 35 Mont. 400, 89 Pac. 731; McGowan v. Nelson, 36 Mont. 67, 92 Pac. 40; McAuley v. Casualty Co., 37 Mont. 256, 96 Pac. 131. And a somewhat analogous principle is also found in the case of Howie v. California Brewery Co., 35 Mont. 264, 88 Pac. 1007, which was not a negligence case. Those cases, however, are in their facts clearly distinguishable from this case. In the Shaw Case, the plaintiff claimed that the accident was caused by the explosion of blasting powder left in a hole in the mine by direction of defendant’s foreman, of the existence of which deceased had no knowledge. It was held that there was no testimony to show that that charge of powder caused the explosion. In the Olsen Case, there'was no testimony to connect the defendant company, or any of its officers, with the explosion of powder which caused
Numerous cases from other states are also cited in which the principle laid down in the Montana cases is applied, but in some of these latter cases, as we think, the facts presented did not warrant the conclusion reached by the court; but in this case we cannot agree that the relation of cause to effect is wanting, or that it is one of those instances where the testimony is equally consistent with the existence or nonexistence of negligence on the part of the defendant. We venture to say this, because there is practically no dispute as to the physical conditions existing about the mouth of the shaft before and after Hollingsworth left the engine-room. The shaft was about twenty feet from the engine-room, and the closet was about the same distance from the shaft. The plank flooring was covered with dirt, and all of the men employed there were in the habit génerally of walking over it, following a trail from the engine-room to the-closet. About ll o’clock, on the night in question, deceased,
We are of opinion that the jury ivere justified in finding, from the foregoing testimony, that Hollingsworth accidentally fell into the shaft, and that the opening into which he fell was
4. Other less fundamental errors are assigned:
(a) Plaintiffs’ counsel asked their witness Murphy this question: “Mr. Murphy, can you say whether, basing your knowledge, if you have any knowledge, on your examination of that shaft on the morning of the accident, can you say whether any timbers were beneath the collar of the shaft on the day before ? ’ ’ Counsel for appellant objected to the question being answered unless it was first shown that witness had knowledge of the condition before the accident. The answer was: “Well, from the condition of the shaft, as I saw it, any miner of any experience at all would say that you couldn’t see where there were any timbers outside of the collar set.” Murphy was a miner. His answer amounts to a statement that he saw no evidence of any timbers below the collar set and no evidence of any having been there the day before. This witness had already testified, with
(b) The foregoing also applies to the ruling of the court in allowing Murphy to testify that, from the appearance of the shaft the next morning, he would say that there had been no timbers beneath the collar set.
(c) This same witness was asked: “What method, if any, is known and used in this community to make dirt and rock around the empty space of the shaft sustain it?” Counsel objected to the question on the ground that it was incompetent under the pleadings in the case, and for the further reason that the witness had testified that he did not know anything about the condition of the shaft until the next morning. The court overruled the objection, and the witness answered: “Well, in such cases, where you have to protect a shaft there, they usually use heavy plank and logging and run it all the way around.” We doubt whether the objection was so stated to the trial court as to put it in error in any event, but we find it argued in the brief and will consider it. Counsel contend: “The rule is, did the.defendant exercise reasonable care in the repair of the shaft to make it reasonably safe, and not what the method was in use in the community to make the dirt and rock around the empty space of the shaft sustain it. It is no matter what method is usually employed, if the method pursued by the appellant discloses the fact that it used reasonable diligence to protect the shaft from caving and render it reasonably safe.” But the question to be decided was! Was the method employed by the appellant reasonably safe? In the ease of Boyce v. Wilbur Lumber Co., 119 Wis. 642, 97 N. W. 563, the court said: “Inasmuch as negligence
Mr. Labatt, in his work on Master and Servant (section 52), has this to say: “The courts not infrequently employ language which, if taken literally, would seem to embody the doctrine that nonconformity to common usage implies negligence, as a matter of law. But an examination of the eases in which expressions of this sort occur will show that they merely amount to somewhat, loose statements of a rule which may be enunciated more accurately as follows: The master’s negligence is a question for the jury whenever it is warrantable to infer from the evidence that the injury would not have been received if a certain instrumentality or method had been substituted for that actually adopted by the defendant, and that this alternative instrumentality or method was one commonly used by other employers in the same line of business under similar circumstances. This rule is applied both by the courts which do, and by the courts which do not, accept the doctrine that conformity to common usage is a conclusive defense.” We think this rule, as gathered from the decisions and restated by the author, is reasonable and logical, and adopt it as the law of this state. See cases cited to support the text, and, also, 6 Thompson on Negligence, section 7882, and cases cited.
(d) Instruction No. 6, given by the court, is as follows: “Gentlemen of the Jury: If under all of the evidence and all of the instructions your verdict is for the Hollingsworth heirs and against the defendant company, then it will be your duty to
Because the record discloses that at the time of the trial both children were of legal age, appellant contends that “they were not entitled to further support from the deceased, as a legal obligation on his part, and there is no method whereby we can ascertain what, if any, damages were allowed by the jury for said children in this charge.” The statute provides (section 6486, Revised Codes) that an action for death of an adult caused by the wrongful act of another, may be maintained by the heirs or personal representatives. Section 3751, Revised Codes, imposed upon the father of any poor person, who is unable to maintain himself by work, the duty “to maintain such person to the extent of their ability.” The phraseology is that of the legislature. The evidence shows: That Hollingsworth was very kind and affectionate toward his children and spent his leisure time at home with his wife and them; that the daughter had been sick for about a year immediately before his death, and deceased was kind and loving to her during that time, and he “never left her for a moment except while at work”; that the son “is hardly able to take care of himself, is learning a trade, and gets small wages.” In view of this testimony and the fact that our statute does not limit the right of recovery to minor children, it cannot be said that there was no proof that the children of deceased had suffered damage, and, if they were entitled to any damages at all, it was for the jury to say what sum would compensate them. (See Redfield v. Oakland Consolidated St. Ry. Co., 110 Cal. 277, 42 Pac. 822, 1063.)
(e) The trial court struck from defendant’s offered instructions relating to the defenses of contributory negligence and assumption of risk the words “or had equal means of knowledge with the defendant thereof,” that is, of the dangerous condition of the shaft, and this is assigned as error. There are two phases of this matter to be considered. Instruction 12, as given, illustrates the points involved. It reads as follows: “If you
The court told the jury that, if Hollingsworth knew of the caving and the dangerous condition of the shaft, it was his duty not to approach it, and, if he did approach it with such knowledge, plaintiffs could not recover. The record shows that Hollingsworth was about the premises at the time the steam pipe was laid into the abandoned shaft, -and we shall assume that he knew it was there and the use to which it was put. In addition to the foregoing, defendant’s witness Goff testified that Hollingsworth said he actually knew of the cave-in about the shaft, and, if what Goff said was true, Hollingsworth understood and appreciated the danger; but the jury may not have believed Goff, and evidently, considering the charge of the court and the verdict, did not. Without his testimony there is nothing in the record to indicate that Hollingsworth knew the danger arising from the fact that the ground had actually caved in. It remains to be determined, then, whether, assuming that Hollingsworth did not actually know of the cave-in, the same duty rested upon him to appreciate the situation as rested upon the defendant. It was the duty of the defendant corporation to use reasonable care to furnish and provide for its employees a reasonably safe place to work. It was the right of the servant •.to assume that the master had discharged this duty. So far ;.as this particular case is concerned, this discussion is not very
(f) What has heretofore been said disposes of the questions raised by the appellant based upon the court’s refusal to give its proposed instructions numbered 20, 21 and 22.
(g) Complaint is made that the trial court refused to submit to the jury for answer several interrogatories prepared by the appellant. District courts may in all cases direct the jury to find a special verdict in writing upon any or all of the issues, and in all cases may instruct them, if they render a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon; but in no case shall special issues be submitted when, in the opinion of the court, a general verdict would be sufficient. (Revised Codes, see. 6758.) We do not here determine whether or not error may ever be predicated upon the refusal of the trial court to submit special questions to a jury for determination; but we have no hesitancy in saying in this case, assuming that it was the duty of the court to exercise a sound legal discretion in the matter, that no abuse of discretion is disclosed by the record.
(h) The foregoing discussion disposes of all errors assigned and argued in the briefs of counsel, including those founded
The judgment and order are affirmed.
Affirmed.