145 P. 907 | Nev. | 1914
Lead Opinion
(after stating the facts):
"It shall be unlawful for any person or persons, company, or companies, corporation or corporations, to sink or work through any vertical shaft at a greater depth than three hundred and fifty feet, unless the said shaft shall be provided with an iron-bonneted safety cage, to be used in the lowering and hoisting of the employees of such person or persons, company or companies, corporation or corporations. The safety apparatus shall be securely fastened to the cage and shall be of sufficient strength to hold the cage loaded at any depth to which the shaft may be sunk. In any shaft less than three hundred and fifty feet deep where no safety cage is used and where crosshead or crossheads are used, platforms for employees to ride upon in lowering and hoisting said employees shall be placed above said crosshead or cross-heads. Any person or persons, company or companies, corporation or corporations or the managing agent of any person or persons, company or companies, corporation or corporations, violating the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in the sum of five hundred dollars,
The evidence in this case discloses that an iron-bonneted safety cage was somewhere about the workings of the mine, but not in use at any time during the period in which the respondent, Ryan, was an employee of the appellant company. It is the contention of appellant that inasmuch as this safety cage was on the premises, although not used for the purpose of lowering and hoisting the employees while so engaged in sinking the shaft, the appellant company had sufficiently complied with the law, nevertheless.
It is unnecessary for us to comment on the absence of evidence in the record as to the condition of this safety cage, which appears to have been on the premises. It may or it may not have been in working order; there is nothing in the record that would explain its condition in this respect. But, aside from this phase of the question, which plays no part in the case, it is our judgment that the contention of appellant with reference to this phase is untenable.
A statute is not susceptible of interpretation such as that which appellant would seek to put upon it. Clearly, by the terms of the statute it is made unlawful to sink or work through any vertical shaft at a greater depth than 350 feet, unless in the lowering and hoisting of employees, in conducting such work or such sinking, the shaft be provided with an iron-bonneted safety cage.
Section 4222, Revised Laws — being section 25 of an act entitled "An act creating the office of inspector of mines; fixing his duties and powers,” etc. — is as follows:
"The cage or cages in all shafts over 350 feet in depth shall be provided with sheet-iron or steel casing, not less than one-eighth inch thick, or with a netting composed of
Reviewing this provision in conjunction with section 6799, a complete description of that which is in the latter section termed "an iron-bonneted safety cage” is given; and in section 4222 special provision is made for the unusual necessities attendant upon the sinking of shafts such as that which was being accomplished on the property of appellant company when this accident occurred. In other words, the statute provides that, when such cage is used for sinking only, it need not be equipped with such doors as are otherwise required. This special provision was undoubtedly enacted by the legislature with a view to meeting the conditions which are ever attendant where the work of sinking is being carried on. The mere having upon the premises such an apparatus as that which is contemplated by section 6799 does not meet the requirements of the law, where the master, in hoisting or lowering employees working through a vertical shaft, makes no use of the- appliance; and the mere fact that the employees failed to demand such an appliance to be used in lowering or hoisting them through the shaft, when it had attained a depth greater than 350 feet, does not relieve the master of the force .and effect of the statute. (Peabody-Alwert Coal Co. v. Yandell, 179 Ind. 222, 100 N. E. 758.) This statute is not only a penal statute in its nature, but it is a remedial statute, intended not primarily to subject the violator to fine or imprisonment, but rather intended to safeguard life and limb of
In order that the employer might know and realize the imperative character of the act, criminal procedure was by the legislature made a method by which compliance with the statutory provision should be enforced. The primal object and purpose of the statute, as we have already said, was the safety of those whose vocation took them into such places of employment; it was to prevent the unnecessary sacrifice of human life; and the unnecessary infliction .of human suffering upon those who become the victims of accidents such as the one detailed in this record. This being the object of the law, this relief sought to be afforded by the legislation, the contention that the apparatus contemplated by the law was on the premises, and could have been demanded by the employees, in our judgment, falls far short of a compliance with the spirit or the letter of the legislation. (Miles v. Central Coal and Coke Co., supra.)
As was said in the case of Cheek v. Railway Co., 89
In the case of McRickard v. Flint, et al., 114 N. Y. 222, 21 N. E. 153, the Court of Appeals of New York had under consideration a case growing out of the violation of a statute of the State of New York which provided that:
"In any store or building in the city of New York in which there shall exist or be placed any hoistway, elevator, or wellhole, the openings thereof, through and upon each floor of said building, shall be provided with and protected by a substantial railing, and such good and sufficient trapdoors with which to close the same as may be directed and approved by the superintendent of buildings, and such trapdoor shall be kept closed at all times except when in actual use by the occupant or occupants of the building having the use and control of the same.”
The trial court in that case instructed, in substance, that any one constructing or using an elevator upon his premises is considered as doing so with knowledge of the law in that respect, and, if such person fails to comply with the requirements of the statute, he is prima facie guilty of negligence. The court of appeals held that, as an abstract proposition, there was no error in the charge, as it had reference to the failure to perform a statutory duty. Holding to the same general effect is the case of Siven v. Temiskaming Mining Co., 25 Ont. Law Rep. 524.
"Where-an owner, operator, or manager so constructs or equips his mine that he knowingly operates it without conforming to the provisions of this act, he wilfully
In applying and' construing statutes such as this, courts cannot and should not close their eyes to the primary calculated object and purpose of the act itself, namely, minimizing, so far as legislation can minimize, the opportunity for injury, to those required to perform service where latent danger is ever present. The statute under consideration in the Carterville-Abbott case, supra, was one growing out of a specific constitutional provision of the State of Illinois. While our constitution contains no such provision, the statute in question here is a wholesome police regulation, enacted for a humane object; and the reasoning set forth in the Carterville-Abbott case, supra, is none the less applicable.
The Supreme Court of Illinois, in considering this question under a somewhat similar condition, said:
" 'The rule that the servant assumes the ordinary risks
The Supreme Court of Illinois, in a number of cases, held consistently that any conscious omission or failure of an employer to comply with a statute which requires of him that he furnish certain reasonable appliances for the protection of life and limb of the employed renders him liable for ensuing injuries. (Donk Bros. Coal and Coke Co. v. Peton, 192 Ill. 41, 61 N. E. 330: Carterville Coal Co. v. Abbott, supra; Odin Coal Co. v. Denman, supra; Donk Bros. Coal Co. v. Stroff, 200 Ill. 483, 66 N. E. 59.)
It is the contention of respondent that the bell cord from the collar to the floor of the shaft was not properly stapled, and hung loose and unfastened from the 400-foot level to the point where respondent was working, and that, in ascending the shaft after having "spit” the fuse, respondent and his coworkers became entangled with the bell cord, and due to this, Pace, the coworker of respondent, was thrown off the bucket, and in being thrown off he so engaged respondent as to drag respondent with him, the latter falling to the bottom of the shaft and sustaining the injuries mentioned.
The record discloses a very sharp conflict in the evidence as to what did really happen as respondent and his coworkers ascended the shaft, standing, as they were, on the rim of the bucket. Appellants contend, and there is some evidence in the record which bears out their contention, that in mounting the bucket the men caused it to swing from side to side in the shaft, and, after having signaled the engineer to hoist, the bucket struck the timbers on the sides of the shaft, and respondent and Pace were thereby thrown off.
In the case of Konig v. The Nevada-California-Oregon Railway, 36 Nev. 220, 135 Pac. 155, we said:
"However difficult it may be, in the first instance, to formulate a proper definition of proximate cause, and, in the second instance, to apply such definition to a set of facts, one general rule is applicable to all cases, regardless of the facts that may be presented in any particular case, and that is, where the evidence discloses a succession of events so linked together as to make a natural whole, and all so connected with the first event as to be in legal contemplation the natural result thereof, the latter will be deemed the primary cause or 'proximate cause, ’ as it is more often termed. There may be concurrent circumstances, and there may be intervening agencies, and one of the intervening agencies may be the acts of the party injured; but if the culminating fact, or the resultant catastrophe, came about by reason of all these agencies working together concurrently, then the first negligent act is, and should properly be, deemed the proximate cause.”
If, as is contended for by appellant, the bell rope was the proximate cause of the accident, or if, as might be contended, the swinging of the bucket and its impact against the timbers on the sides of the shaft caused the
A number of assignments of error are asserted by the appellant, relative to instructions given by the trial court; but, in view of our consideration of the law applicable to this case, we deem it unnecessary to dwell upon these. Suffice it to say that we find no error in the instructions as given. Many of the instructions offered by the appellant, and refused by the trial court, were not properly applicable’to this case, in view of the law governing its various' phases.
. It follows from the foregoing that the judgment of the lower 'court, entered pursuant to the verdict, and the order of the lower court denying appellant’s motion for a new trial, should be sustained.
It is so ordered.
Rehearing
On Petition for Rehearing
Rehearing denied.