Scott v. Utah Consolidated Mining & Milling Co.

| Utah | Feb 28, 1899

Baktch, C. J.

This action was brought by the plaintiff to recover damages for personal injuries alleged to have been received by him through the negligence of the defendant. At the trial the jury rendered a verdict in favor of the plaintiff for $7,000. Upon judgment being entered for that sum, the defendant appealed to this court.

It appears that the main ground upon which the plaintiff relies for a recovery is negligence of the defendant in employing fellow servants who, it is alleged, were incompetent, and whose act, it is claimed, caused the injury of which complaint is made. . The appellant contends that the evidence is insufficient to support a recovery on that ground, and the real question here presented is, therefore, whether there is evidence to support the judgment, for, if there is, then we are powerless to determine whether such evidence preponderates. That, in a case at law, we have no right to determine whether a judgment is supported by the preponderance of the evidence is no longer an-open question in this court. There is testimony in the record which shows substantially that the accident, which caused the injury complained of, occurred in a cross-cut in the appellant’s mine while the plaintiff and a co-employe were at work by direction of the acting foreman of the mine; that among the duties of these employés, as miners, were those of drilling holes into the r.ock and by means of explosives break down the rock and other material; and that while they were engaged in drilling a hole, the drill struck some unexploded powder which exploded and caused the injury. On the shift previous to the accident two other employés, Arthur Buckner and Charles Carter, had been at work in the same place, and had drilled holes and blasted rock. It is admitted Buckner was incompetent and unskilled as a miner, and, while there is some evidence to show that Carter knew more about drilling and blasting than Buckner, still he was known as an ore sorter rather than a miner. On this point the witness Robbins, a miner of experience, testified:

“The shift before the explosion I was in the drift or cross-cut, I saw Charlie Carter and Arthur Buckner and they were drilling when I went in. I struck a few licks on the drill. They were drilling in the left hand corner. * * * Where they were drilling was down in the left hand corner about a foot and over from the face and about ten inches from the' side. I saw Charlie Carter with powder in his hand, drawing it backwards and forwards over the flame of a candle. It was giant powder. I turned round and saw Carter and I said: ‘You damn fool, you will be blowing somebody up yet.’ and broke and ran out of the drift. * * * I have had experience in driving drifts and cross-cuts and shooting powder and so on, and doing mining work proper. The hole they were drilling was not such a hole as miners would drill. A miner would drive a hole to break the ground. They were driving it so I thought it would just blow off the breast of the hole — I mean by that the top. That would leave the bottom of the hole unbroken and the ground around it.”

The witness Roberts, Jr., testifying for the defendant, on cross-examination, said that he did not mean to testify that Carter was a competent, skillful miner, but that Carter knew how to handle giant powder, and further testified that a man might know how to “handle a piece of giant powder and yet not know how to properly drill a hole and properly tamp it and properly place powder in with a view to having it all exploded,” and that “aman may leave a hole so that the top of the hole will blow off and leave the bottom not exploded.”

There was also evidence showing that it was dangerous to put frozen powder into a bole with powder not frozen, since the frozen powder might or might not explode; that the powder would freeze in an hour or two in the mine; that near the end of their shift Carter and Buckner fired the last holes drilled by them, and that on the next shift the injury, complained of herein occurred by drilling into unexploded powder. The evidence also tends to show that the defendant was aware of the incompetency of Carter and Buckner.

Although there is other testimony of similar import in the record, further reference thereto in detail is deemed unnecessary. We cannot say that there is no proof to sustain the judgment, nor that the jury were not warranted in finding, as they must have found, that the appellant was guilty of negligence in employing incompetent fellow-servants, and that the want of skill of such servants was known to their employer and was the proximate cause of the injury.

From the circumstances detailed by the witness Bobbins, the jury might conclude that Carter and Buckner, who were shown to be incompetent as miners, had drilled and loaded the hole, which contained the unexploded powder and was drilled into by the plaintiff and his co-laborer, in such an unskillful manner that when fired only the top of it blew off, leaving powder in the bottom of the hole unexploded, or that the accident resulted from the unskillful use of frozen powder with powder not frozen. Whatever may have been the reasons which actuated the jury in arriving at their conclusion, or the process by which they arrived at it, the evidence is such that we-cannot disturb their verdict on the ground that the proof is insufficient to support a recovery for the negligence of the defendant in employing fellow-servants.

The fact that some of the testimony above referred to is rebutted by other testimony can make no difference, since, as we have seen, in a case like this, where there is a conflict of evidence, we have no power to substitute our judgment upon the proof for that of the jury.

The'appellant also complained of that portion of the charge of the court to the jury which, it is maintained, is contained in plaintiff’s request numbered 2, and the contention is that the court attempted to substitute itself for the jury, by assuming and determining facts which should have been submitted to the jury for determination. To this we must reply that however meritorious the objection to that portion of the charge' may be, we are precluded from considering it, because no specific exception was taken to the objectionable matter at the time of the rendition of the charge, nor the court’s attention called thereto so as to afford an opportunity to correct any inadvertance into which it may have fallen without subjecting the parties to the expense of another trial. The paragraph in question consists of a whole page of printed matter, stating a number of propositions, upon which a recovery depended, and the only exception thereto appearing in the record is, as follows: “The defendant duly excepts to that part of the charge containing plaintiff’s request numbered 2.” Similar exceptions were taken to numerous other portions of the charge, in no one of which was any objectionable matter pointed out. This court has frequently held that such wholesale exceptions cannot be of avail on appeal, unless the whole charge or instruction is incorrect. Marks v. Thompson, 7 Utah; 425; People v. Hart, 10 Utah, 204" court="Utah" date_filed="1894-06-19" href="https://app.midpage.ai/document/people-v-hart-8653780?utm_source=webapp" opinion_id="8653780">10 Utah, 204; Buffatti v. Lexington Min. Co., Id. 386; People v. Berlin, Id. 41; Lowe v. Salt Lake City, 13 Utah, 91" court="Utah" date_filed="1896-03-24" href="https://app.midpage.ai/document/lowe-v-salt-lake-city-8653933?utm_source=webapp" opinion_id="8653933">13 Utah, 91; Wilson v. Sioux Consolidated Min. Co., 52 Pac. Rep. 626; s. c. 16 Utah 392.

The exceptions to the admission of evidence we do not think are well taken. Nor do we think any other question presented is of such importance as to require separate discussion. There appears to be no reversible error in the record. The judgment is affirmed with costs.

Baskin, J. and Norrell, District Judge, concur.'