36 Nev. 149 | Nev. | 1913
By the Court,
This is an action for damages for personal injuries sustained by respondent while working as a miner and machine man in appellant’s mine in Tonopah. From a judgment in favor of plaintiff for the sum of $1,166 and costs, and from an order denying a motion for new trial, defendant appeals.
The case was tried before the court without a jury. The complaint alleged "that, while plaintiff was employed at the place and at the work to which he had been directed by the defendant, he was, without fault upon his part, precipitated by the falling of the hoist bucket, on which he had mounted from the 400-foot station of the mine shaft to the bottom thereof,” causing the injuries for which judgment was demanded.
The sixth paragraph of plaintiff’s complaint reads as follows:
"That defendant failed in its duty to the plaintiff, its employee, in the following respects, to wit:
" (a) In not providing and maintaining safe equipment, machinery, and appliances; but, on the contrary, furnishing and maintaining equipment, machinery, appliances (to wit, the engine and hoisting apparatus employed*151 in the sinking of the shaft from the 400 level) that were improper, unsuitable, defective, and dangerous, as defendant knew and had full opportunity and reason to know.
" (b) In not warning plaintiff of the aforesaid dangers.
" (c) In not interposing to prevent plaintiff from getting onto the bucket, when defendant knew that he was about to do so and that it was dangerous so to do, as the engine would not hold under the circumstances then existing; the defendant being aware thereof and having full opportunity so to interpose.
" (d) In not providing employees in sufficient numbers for safety.
" (e) In allowing and directing the engineer of the aforesaid engine to leave his post thereat at a time when the hoisting apparatus was likely to be used and when only the muscular strength of the engineer could prevent the engine from letting the bucket fall, if any weight were put upon it.
" (f) In leaving said engine unattended at the time and under the circumstances previously mentioned.
" (g) In negligently employing and retaining negligent employees, knowing or having reason to know them to be such — reference being had to the engineer in charge of the aforesaid engine and to one Richie, the foreman or underground superintendent, having full charge and control of the machinery and of the men and place and work at said 400 station and said shaft and the sinking thereof.
" (h) In permitting and directing, through the said Richie, acting in the line of his duty and giving said permission and order within the scope of his authority, the plaintiff to mount the bucket (for the purpose of being lowered thereon) at a time and under circumstances when it was dangerous so to do, as defendant knew and had opportunity and reason to know; the plaintiff having acted under said permission and order. In all the aforesaid respects defendant was grossly, recklessly and wilfully negligent, and thereby naturally, directly and proximately caused the injuries and damages complained*152 of; the plaintiff having mounted the bucket (the falling of which, owing to the yielding of the engine, precipitated him some fifty feet down the shaft), without fault or negligence upon his part, in the proper discharge of his duties, for the purpose of being lowered into the shaft, for which purpose, inter alia, said bucket, engine and hoisting apparatus was provided, and not knowing or having reason to know of any danger.”
In addition to denials of a number of allegations in plaintiff’s complaint, defendant sets up as a defense contributory negligence upon the part of the plaintiff.
The evidence shows that the appellant company was operating its mine to the 400-foot level by a hoisting engine upon the surface. The company, having determined to extend the shaft to the 500-foot level, first used a windlass in sinking, but subsequently lowered to a station on the 400-foot level a small engine, previously used upon the surface for hoisting ore from the dump into ore bins. This small hoist was lowered some one or two days
The injuries to respondent were occasioned by his stepping upon the bucket at a time when the engineer was absent from the hoist engaged in performing his other duties. Evidence was introduced upon the part of respondent that he was not aware of the defective condition of the hoist, nor that the engineer, by reason of other duties, was not at all times in actual control of the hoist, and that he had never been warned not to step upon the bucket without first ascertaining that the engineer was at his place and in control of the engine. Upon the part of the appellant evidence was introduced tending to establish knowledge upon the part of respondent of the defective condition of the engine, and that he had been particularly instructed not to step upon the bucket for the purpose of being lowered down the shaft without first, seeing that the engineer was at his place. It was also shown upon the part of appellant that immediately following the accident the respondent had made statements to' the effect that it was his own fault that the accident occurred. It was also shown that the appellant company had provided a ladder down the shaft which could have been used by respondent.
Concerning these portions of the evidence, the trial judge in his opinion says: "The first and most serious of these to the contentions of the plaintiff, in my opinion,
Judgment affirmed.