21 P. 679 | Nev. | 1889
The facts are stated in the opinion. This is an action to recover damages for injuries received by plaintiff while employed at work in defendants' mine. The court below granted a nonsuit upon the ground that the testimony introduced by the plaintiff showed that the plaintiff had by his own negligence proximately contributed to the injuries he received. The testimony shows that plaintiff was forty-two years of age; that he had been engaged in the business of mining for a number of years; that he had been at work for defendants for a period of sixteen days; that the mine of defendants was worked with a windlass over an incline, which was mostly at an angle of forty-five degrees, the lower part of the incline was about sixty degrees; that there were skids and two *306 runways for buckets, about eight inches apart; that there was a ladderway on one of the runways; that three buckets were in use in the incline — one going up as the other came down and one was being filled while the loaded one was being hauled up and the empty one lowered; that three of the employes were in the incline — two at the windlass, and one at the bottom, filling the buckets; that it was a custom of these three men to take turns about at the windlass and filling the buckets, and all did the same kind of work at times; that on the day the injuries were received plaintiff was at work at the bottom of the incline, filling buckets; that he had put a few inches of dirt in the bottom of the bucket, then six drills, and one short pick, and then filled the bucket to within a few inches of the top with dirt; that plaintiff was looking up the incline, and the bucket got caught; "that one of the men at the windlass hallooed to loose the bucket," and he started up to relieve the bucket, and when up about twenty-five feet from the bottom of the incline the rope broke, and the bucket fell upon him causing the injuries he received; that it was a rule of the mine that no man should follow up a loaded bucket; that the men at the windlass were, however, in the habit of calling to the man below to come up and loosen the bucket, and the man below was in the habit of so doing; that the rope used was an inch rope; that it had been in use for two or three weeks; that there was rope in the office to be put on when a new rope was needed; that when the bucket caught, as it was apt to do when tools were put therein, and sometimes from rough places in the skids, it was the custom for the windlass men to try and shake it loose, and sometimes they would pull on the rope. Plaintiff knew it was dangerous to follow the bucket up the incline. He knew that the rope looked old, and had been worn from dragging on the skids or cross-beams which held or supported the two runways for the buckets, but had never called the attention of the owners of the mine, or their foreman, thereto.
This is substantially the testimony introduced upon the part of the plaintiff, and upon which the nonsuit was granted. Whether a case should be withdrawn from the jury, and the plaintiff nonsuited, is purely a question of law. When properly made, it is simply a decision that the law affords no relief upon the evidence adduced, admitting every fact and conclusion *307
which it tends to prove. It is not a decision upon the weight of the evidence where it is conflicting, but that it is not sufficient to justify its submission to the jury. [Cooper v. Insurance Co.,
Did the plaintiff contribute in any degree to the injuries received by him when he left the bottom of the shaft and ascended the incline for the purpose of loosening the bucket, knowing it to be dangerous to do so. InHarper v. Railroad Co.,
In Sullivan v. Bridge Co., 9 Bush. 89, the court said: "He not only had the means of knowing, but did know, the danger he was incurring, and voluntarily placed himself in a position where he lost his life; when, by the exercise of ordinary care for his own safety, he might have avoided it." [Railway Co. v. Fowler,
In an action for damages, where the injuries of which the plaintiff complains have resulted from the negligence of both parties, without intentional wrong on the part of defendant, the plaintiff cannot recover. "When it appears from the evidence that the plaintiff has been guilty of great imprudence, which was at least one of the proximate causes of the evil, he cannot recover." (Harper
v. Railroad Co.,
Under the most careful management mining is attended with great danger, and persons engaging therein must be presumed knowingly to incur the risks incident thereto. If the place where be is put to work is in an unsafe condition, or the implements which he is to use are not sufficient to perform the duty for which they are intended, and he chooses to remain, he assumes the risks, and cannot recover for an injury received. He might leave if he chose, but, choosing to remain, he cannot remain at the risk of the employer. Every employer has a right to judge for himself how he will carry on his business, and workmen having knowledge of the circumstances must judge for themselves whether they will enter his service, or, having entered, whether they will remain. The employe has the same means of knowing, as the employer, the usual perils of the business; he is as well able to guard against them as his employer; and it is equally just and reasonable to both, and strongly calculated to secure fidelity and prudence on the part of the employe, that he should rely solely on the skill and prudence of himself in the business for protection from injury. The plaintiff, as appears from his own testimony, was an experienced miner. He had been working on the windlass and filling buckets in the incline for some time prior to the accident. He had the handling of the rope, changing it from one bucket to the other. He was familiar with everything connected with the incline. He knew as well as his co-employes that it was dangerous to follow the bucket up the incline. The foreman had forbidden the running of the buckets while the men were going up the incline from work, and at the time of the accident three miners had stopped the hoisting of the bucket, until they went up. The foreman had also notified one of the windlass men not to follow the bucket up, and requested him to notify all the men on his shift to the same effect. The plaintiff said the rope was an inch rope. *312
He had always seen an inch and a quarter rope used for such work. It looked old; had been worn on the skids or cross beams. The plaintiff never made any complaint as to the condition of the rope, or the danger in following the bucket up the incline. It will not do for him to say: "I was employed there to work, and not to examine ropes." It was as much his duty to examine and keep himself informed as to the condition of the rope as it was to fill the buckets. (Wells v. Coe,