207 F. 297 | 6th Cir. | 1913
This proceeding is to reverse a judgment recovered against the Copper Company by Nevada Gaddy as the widow of Thomas Gaddy. The suit was for alleged negligent injuries received by the husband which resulted in his death. Gaddy received his injuries while in the employ of the company and working in one of its copper mines. The acts of negligence alleged are, in substance: (1) That without the knowledge or fault of the deceased ■ the company knowingly left a stope in an unsafe and dangerous condition, from which a rock of several tons in weight fell and rolled to another portion of the mine, where deceased was working, striking and fatally injuring him; (2) that the company neglected to prop and make secure the dangerous portions of such stope, by reason of which the injuries and death ensued without fault of the deceased. The case went to trial upon the general issue, and resulted in a verdict of $6,000. The company moved for a directed verdict at the close of plaintiff’s evidence, and again at the close of all the evidence, and both motions were overruled. The charge of the court below is not included in the record, nor was any exception taken to it.
It is insisted' that the act of so returning was sufficient to charge the deceased both with the assumption of risk and contributory negligence. Some evidence was offered to the effect that there was a rule which required operatives upon the falling of fines not to resume work unless and until they notified the balkgrouud foreman and received from him assurance that all was safe; but it is not at all clear that Gaddy had notice of this rule. True, the fact that the men placed themselves under a ledge immediately upon the falling of the fines implies that the deceased as well as the other men knew that this signified danger ; and yet the three men other than Gaddy, who were much more experienced than he, demonstrated by their actions that in their judgment the falling of the fines in this instance was a false alarm. The falling of fines was not an invariable token of the falling of heavier material. The fact that as much time elapsed after the men returned as had passed during their stay under the ledge tends to vindicate the judgment of these miners that in this instance at least no other fall of material would occur. It is hard to see how a reviewing court can say as a matter of law that the opinions of these miners, especially of the three experienced men, signify that Gaddy consciously or impru
These questions were carefully considered by the learned trial judge in his opinion denying the motion for a new trial. Having had the advantage of seeing and hearing the witnesses at the trial and of estimating the value of their testimony, he said:
“I am furthermore of the opinion, especially in the light of Gaddy’s own short experience in work of this kind, the temporary purpose for which they returned to work, and the conduct of the other men with him, that the verdict of the jury under 'the charge, which was unexcepted to, involving, in effect, a finding that neither assumption of risk nor contributory negligence had been established, is not so clearly and manifestly against the evidence or the weight of the evidence as to require it to be set aside under the rule stated by the Circuit Court of Appeals for this circuit in Mt. Adams Ry. Co. v. Lowery, 74 Fed. 463, 472 [20 C. C. A. 596], and Felton v. Spiro, 78 Fed. 576 [24 C. C. A. 321], especially as the court is always more reluctant to set aside a verdict when it is against the party having the burden of proof. Cunningham v. Magoun, 18 Pick. (Mass.) 13.”
Upon the whole, we conclude that the case was rightly submitted to the jury. Union Pac. Ry. Co. v. Jarvi, 53 Fed. 65, 69, 3 C. C. A. 433 (C. C. A. 8th Cir.); National Steel Co. v. Hore, 155 Fed. 62, 65, 83 C. C. A. 578 (C. C. A. 6th Cir.); Williams v. Bunker Hill & Sullivan Mining & C. Co., 200 Fed. 211, 215, 216, 118 C. C. A. 397 (C. C. A. 9th Cir.); Yazoo & Mississippi Valley R. Co. v. Wright, supra; Texas & Pacific Ry. Co. v. Harvey, supra.
The judgment below is affirmed, with costs.