123 P. 696 | Mont. | 1912
delivered the opinion of the court.
Plaintiff brought this action to recover damages for a personal injury sustained by him on the night of March 8, 1900, during the course of his employment by the defendant in its coal mine in Carbon county. On a former appeal (31 Mont. 359, 78 Pac. 595) defendant was awarded a new trial because the jury had disregarded certain instructions submitted by the trial court. The present appeal is by the plaintiff, from a judgment entered upon an order sustaining defendant’s motion for a nonsuit.
It appears that at the time of the accident the plaintiff was operating a shearing machine. This machine consists of an electrical motor, with a steel or iron frame about three feet in height projecting horizontally forward sis or seven feet, armed with a cutting device in the form of an endless chain in which are set small picks at short intervals. The chain is so adjusted to a system of wheels that it is carried by the motor along a” bar at the top of the frame, over the front end, and returned along another bar on the lower side. The whole is set on trucks and is moved on a track constructed of iron rails. When it is put in operation, it is moved along the track until the picks are brought in contact with the face of the stratum or vein of coal. Power is then applied by means of the motor. The machine is prevented from “bucking” backward, by a jack set against the rear end and stayed against the roof of the mine. To prevent the machine from “climbing” as the picks dig into the coal, the forward end of the frame is held by clamps secured to iron posts extending from the floor of the mine to the roof on both sides of the frame.. The machine makes a vertical cut into the body of coal, about four inches wide, three feet in height, and to a depth of the length of the frame. Frequently three such cuts are made from the floor, upward; the number depending upon the thickness of the stratum. To make the third cut it is necessary to raise the forward end of the machine and to support it in that position. Its weight is about 1,800
Though the allegations of the complaint are broad enough to include in it the charge of negligence by reason of the defective condition of the clamps and posts, and some evidence was introduced with reference to it, it is admitted by counsel for the plaintiff that this condition contributed in no wray to the injury. The same may be said of the sprag. It is not claimed that the failure of the defendant to supply a handle for the pump-jack contributed to the injury. These features of the case may therefore be excluded from consideration. The plaintiff relies upon the charge that the defendant was negligent in furnishing him a pump-jack which was defective, by reason of its worn-out condition. The defendant denies that it was guilty of any negligence, and alleges contributory negligence and assumption of risk by the plaintiff.
Among other assignments of error, we find two based upon rulings of the court in excluding certain items of evidence. These are not referred to in the argument; hence we conclude that counsel for the plaintiff abandoned them as being without merit.
Observing the rule that, in determining a motion for nonsuit,
A brief reference to the evidence .will serve to demonstrate that the contention of counsel is not maintainable. The witness
This partial synopsis of the evidence furnishes ample justification, prima fade, for inferences “c” and “d,” and makes out á case which the court should have submitted to the jury, for if Feeley was for the time being a vice-principal, his knowledge was that of the defendant; or, if it be assumed that he was a fellow-servant, it appears that he had communicated knowledge of the condition of the pump-jack to the superintendent, and it is not disputed that the latter was the representative of the defendant. So that, upon either theory as to the responsibility of Feeley’s position, the defendant was at fault. The plaintiff had a right to assume that the defendant had discharged its full duty with reference to his safety, and it was incumbent
Counsel for defendant contend, however, that a pump-jack
We are further of the opinion that the evidence does not justify, prima facie, a conclusion either that the plaintiff assumed the risk or that he was guilty of contributory negligence. In either case the proper inference was for the jury to draw under appropriate instructions.
The judgment is reversed, and the cause is remanded, at the cost of the defendant.
Reversed and remanded.