10 S.D. 599 | S.D. | 1898
In operating its gold mines near Lead City, defendant made use of a vertical shaft, about 500 feet in depth, divided into what were designated as the north and south compartments. There was a cage in each compartment, which was raised by means of a steam engine at the surface, and lowered by means of a brake near the engine. There were two bells in the hoist, to each of which was attached a wire cord extending the length of the shaft, and passing through each compartment. There was a gong from which a hemp rope extended to either end of the shaft. There were stations in the shaft about 100 feet apart, where the cages were loaded and unloaded. Whenever any person desired a cage brought to any particular station, he would sound the gong according to a
At the close of the testimony, defendant moved the court to direct a verdict in its favor, for reasons, among others, which may be stated as follows: (1) There is no evidence of negligence on the part of Johnson, the engineer; (2) there is no evidence of negligence on the part of the defendant in employing Johnson'as engineer; and (3) the uncontradicted evidence proves that the negligence of the deceased contributed to his death. This motion was sustained.
It is the settled law of this state that when the evidence given at the trial, with all inferences that the jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff, so that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant. Wagon Co. v. Matthiessen, 3 Dak. 233, 14 N. W. 107; Knapp v. Bank, 5 Dak. 378, 40 N. W. 587; Peet v. Insurance Co., 1 S. D. 462, 47 N. W. 532; Haugen v. Railway Co., 3 S. D. 394, 53 N. W. 769; Randall v. Railroad Co., 109 U. S. 478, 3 Sup. Ct. 322. Would the jury have been justified in finding that Johnson raised the cage without receiving the proper signal? It is fair to infer that deceased, the only person authorized by the company’s rules to give the signal, did not give it. The bells were directly above the brakeman, about 20 feet from the engineer — in plain sight of the latter, but not visible to the former. The cage was thrown upon the engine by direction of the engineer, who swears positively that he heard and saw the bell of the south compartment ring the proper signal to raise the south cage from the 400 to the 300 foot level. The brakeman, called as a witness by both
Did defendant neglect to use ordinary care in the selection or retention of its engineer? At the time of the accident, Johnson was about 50 years of age. Excepting a few months, he had been employed by defendant in various capacities for more than 12 years, much of the time as engineer or brakeman in one or another of its hoisting works; and during the entire period it does not appear that he was ever charged with having caused the slightest injury to any one of his numerous co-employes, until the accident involved in 'this action occurred. He frankly admits in his testimony that, when engineer at the Old Abe hoist, he once failed to reverse the lever of his engine, and one cage was carried into the sheaves, causing it slight damage, but without injury to any person. As we view the evidence, this is the only mistake he ever made which is worthy of mention, and plaintiff wholly failed to prove that he was ever discharged. But, if it should be conceded that he was laid off or discharged because of the accident at the Old Abe, that circumstance would tend to establish • the rigid discipline and extreme caution of defendant’s management, rather than a natural disposition to carelessness on the part of the engineer. The machinery at the Old Abe was essentially different in its construction and operation from that in use at the vertical. The accident which happened at the former could not have taken place at the latter. There was nothing in Johnson’s- conduct in connection with that hoist to suggest that he was unfit to operate the engine at the vertical shaft. During all the time he was employed as brakeman or engineer at either hoist, answering signal bells constantly, it is not shown that he ever
In the view we have taken, the question of contributory negligence becomes immaterial, but it may not be improper to observe that it is extremely doubtful if the fatal consequences of this unfortunate accident are not directly attributable to want of proper care on the part of plaintiff’s husband. The station was properly lighted. Should he not have observed the absence of the cage? Did the decision depend upon this issue, it would be interesting to consider whether one who is working in a mine, and who must assume the ordinary risks of his peculiar employment, acts with usual and ordinary prudence, who attempts to step upon a cage without first looking to see if it is in place or not. An employer is not bound to indemnify his employe for losses suffered by the latter in consequence of the ordinary risks of the business in which he is employed. Comp. Laws, § 3753. Accidents frequently occur in mining operations, under the most enlightened and prudent management. It does not follow, simply because one person has been injured, that another should respond in damages. Reason and