63 P. 845 | Utah | 1902
The complaint herein alleges that plaintiff was twenty-three years of age November, 1900, and was in defendant’s employ and earning $2.50 per day as a common miner in defendant’s mine, and working on the 1,800 level of the mine. The complaint then alleges “that, in going to and from his said place of work on the 1,800 level of said mine, plaintiff was transported by said defendant through a certain shaft by means of an elevator, more commonly called a ‘cage,’ which said cage was raised and lowered by means of machinery in charge of an engineer in the employ of said defendant; that in transporting plaintiff as aforesaid to his said work, by
As stated in appellant’s brief, “the important question in the case” presented by the exceptions and assignments of error “is whether the plaintiff and Daniel Knotts were fellow-servants.” It appears from the evidence that the plaintiff was, and had been for a considerable time immediately before his injury, in the service of the defendant as a common miner on the 1,800-foot level of the mine; that there was a shaft of the defendant’s mine of the depth of 1,900 feet, and during the time plaintiff was in defendant’s service he had been habitually conducted through said shaft to and from the place where so engaged, on the cage of an elevator which was operated by, and was under the control of, the said Daniel Knotts, an employee of the defendant, styled the “cage rider;” that at various levels of the mine there are chairs, which are so constructed that they can be projected into the shaft -to support
1. Appellant’s counsel contend that under the facts disclosed by the evidence, and the provisions of section 1343, Revised Statutes 1898, the plaintiff and Daniel Knotts
2. Tbe defendant excepted to, and assigns as error, tbe refusal of tbe court to give tbe twenty-third instruction requested by it, and which is as follows: “If you believe by a preponderance of tbe evidence that, at tbe time of tbe
3. The defendant excepts to, and assigns as error, the refusal to give the twenty-seventh instruction requested by the defendant, which is as follows: “The law is that,
4. "We cannot consider the objection to the seventh instruction
5. John Smith having testified, on behalf of the defendant, that several minutes before the accident he took the cage down the shaft and back to the station, from which it starts when sent down the shaft, he further stated, without objection,
6. There are a number of other assignments of error which' we have not considered, because they -were not presented
The judgment is affirmed, with costs.