181 P. 593 | Utah | 1919
(after stating the facts as above).
It is argued that the rock came from the raise; that the raise had been inspected at six o’clock; that the accident occurred after the inspection; that the master
At the close of all the evidence there was evidence in the record that Waters, the miner, did make an inspection of the ordinary and usual kind, and scaled off
But tjb.is same Waters, who made this inspection, says that, after this inspection and before plaintiff was hurt, another blast was fired in the raise. The answer of defendant alleges, and the evidence of defendant is to the effect, that plaintiff met with injury by going to his place of work prematurely and immediately after the firing of blasts in the raise. The evidence of Waters tends to make the inspection which he said he made at six o’clock an immaterial fact, because, according to his account, subsequent blasts in the raise altered conditions before the accident. The evidence upon the question of negligence is conflicting. It is not
It is solely the function of the jury to weigh the evidential effect of the facts before it, and to deduce therefrom such legitimate inferences as those facts afford. Arrascada
The evidence in this case makes it plain that plaintiff from his place of work could not inspect the raise, and that his only protection from rock falling therefrom lay
So far as concerns the above-mentioned points, the contention of the appellant is without merit.
The trial court instructed the jury that the lease or contract between the defendant on the one part and Sutherland and Long on the other part made and constituted Ben Long an independent contractor. No error is assigned by either party to this instruction, and it is not in question here for the purpose of direct review. But appellant contends that the rule announced or status declared in this instruction is the “law of the case” in this court, and that in reviewing the errors assigned this court must work upon the hypothesis that Ben Long was an independent contractor. Most of the errors assigned by appellant are based upon the theory that Ben Long was an independent contractor, and depend upon that theory for their merit.
The cases are in conflict as to the existence of any rule
It has been held by many courts that it is the duty of the jury to obey the instructions of the court regardless of whether such instructions are right or wrong, and that a proper verdict found contrary to an erroneous instruction will be set aside on appeal. Lynch v. Snead Ironworks, 132 Ky. 241, 116 S. W. 693, 21 L. R. A. (N. S.) 852, and notes. California formerly so held, but the earlier decisions have been overruled and that state is now committed to a contrary doctrine. Mining Co. v. Mining Co., 114 Cal. 100, 45 Pac. 1047; O’Neill v. Thomas Day Co., 152 Cal. 357, 92 Pac. 856, 14 Ann. Cas. 970.
The Supreme Court of the United States refuses to allow any “law of the case” that may exist in the matter before it, by reason of any decision of an inferior court therein, to control or influence its decision. 'In fact, the Supreme Court of the United States has virtually declared itself exempt from any “law of the case” in this narrow sense. Messinger v. Anderson, 225 U. S. 436, 32 Sup. Ct. 739, 56 L. Ed. 1152; United States v. D. & R. G. R. R Co., 191 U. S. 84, 24 Sup. Ct. 33, 48 L. Ed. 106. This court, in the case of Schuyler v. Railroad Co., 37 Utah, 581, 109 Pac. 458, in the opinion of the first hearing, strongly announced that it is the duty of the jury to follow an instruction of the court regardless of whether that instruction is right or wrong. Two rehearings were granted in that case. The first opinion and the order reversing the judgment made therein were set aside, and a verdict found contrary to an erroneous instruction was allowed to stand. The three opinions are contained in 37 Utah, 581-616, 109 Pac. 458, 1025.
It is held by many courts that, where the jury returns a verdict that is proper in all respects under the evidence and upon the record, such verdict will not be set aside on appeal
In cases like this, it is said by the supporters of the “law of the case” doctrine that the idea that the judge is to declare the law and the jury is to pass upon the facts is the corner stone of our judicial system, and that any rule or practice that tends to rob the judge of any of the fullness of his authority to declare the law to the jury, tends to destroy the court. So long as the judge declares law — the true law — the argument may be valid. When the judge erroneously instructs the jury, it is fitting and just that such error be corrected. How corrected? That is a form — a matter of procedure. If the matter comes to an appellate tribunal with the error of the judge already corrected by a verdict of the jury, should the appellate court, for the sake of preserving a form, confer upon the judicial error the garb of sanctity or the boon of immortality?
The highest end for which an appellate tribunal exists is to correct the errors of lower courts, not to perpetuate them. This court would not be holding in high esteem the purpose for which it was created were it to accede to any rule that would permit errors of inferior tribunals to lessen its authority, or to burden litigants with unnecessary delay and expense.
A principle incompatible with appellant’s contention is in broad and strong terms established by the statutes of this state. Section 6622, Comp. Laws 1917, provides that the court must, in every stage of an action, disregard any error or defect in the pleadings or proceedings which does not. affect the substantial rights of the parties, and that no judgment shall be reversed or affected by reason of such error or defect. Section 6968 provides that no exception shall be, regarded unless the decision excepted to is material and prejudicial to the substantial rights of the party excepting. In accordance with the word and spirit of these statutes, this court has held in at least half a hundred cases that it will
In this particular case, let it be conceded that it was the duty of the jury to follow the instruction of the court, be that instruction right or wrong. Let it be assumed that the court gave to the jury an erroneous instruction, and that the jury disregarded the same and, contrary thereto, returned a verdict which according to the case presented is, in the justice of the matter, a just and proper verdict. Does not this come fairly within the statute ? ' More than this, is not this a typical instance of an error, or two errors, that did not prejudice substantial rights? We are of the opinion that it is.
The contract or lease is a part of the evidence presented to this court in this appeal. We are of the opinion that we are free to examine the same and reach such conclusions as to the legal effect thereof as our deliberations may justify.
The contract in question is dated April 21, 1916, and is between Alex Sutherland and Ben Long, parties of the first part, and Dragon Consolidated Mining Company, party of the second part. It recites that the party of the second part is owner of the mine and desires to have ore mined. By the express terms of the contract Sutherland and Long agree to mine ore under the “direction and supervision” of the second party at such places, at such times, and in such quantities, as’ the second party shall direct, and place said ore in the company’s bin. Sutherland and Long agree to furnish their own powder, fuse, caps, supplies, and labor. The second party is to furnish tools and air. The contract provides that the work shall be done in such manner only as is usual and customary in skillful and proper mining operations of a similar character, and “according to ap
On the face of the writing, it is manifest that a typical case of an independent contractor is not presented. The control reserved to the owner covers all details of the work, including “direction and supervision” as to times, places and quantities, and “approval” of methods employed.
Some additional light may be thrown upon the relationship existing between the company and Long by examining the performances that took place under, and collateral to, this contract.
After some work had been done under the contract, Sutherland quit and left Ben Long to work alone. In getting out the ore Long was under the direction or control of the superintendent of the mine, who gave orders as to where ore should be mined and how much should be produced. The superintendent and, to a certain degree, the shift boss “saw to it” that the work was done according to correct methods of mining. The superintendent approved the work and saw that it was done ‘ ‘ carefully and right. ’ ’
Some time before the accident, Long became discouraged and was about to quit, and the company made a new arrangement with him to the effect'that he should be guaranteed a minimum of four dollars per day for his wage or profit, and that if he did not make enough beside to pay his men the company would pay the difference. After this new arrange
According to all the books and authorities, an independent contractor is one who exercises independent control over the mode and method by which he produces the result demanded by'the contract. Analyze the contract in question. The result or final product called for by the contract is mined ore in the bin of the company. By the terms of the contract Ben Long was under the control of defendant at every step of the work. It is difficult, if not impossible, to see or even to imagine one substantial detail of the actual work of getting out ore in which Long was independent or free from supervision or control. The contract itself stipulates
We are of the opinion that Ben Long was not an independent contractor.
Another error is assigned to a ruling of the court permitting a witness to answer a question over the objection of defendant. This assignment deserves some consideration. Baxter, a witness for plaintiff, and a miner of thirty years’ experience in the Tintic country, in which the Dragon mine is situated, and who had worked in the Dragon mine for a period of fifteen months, covering a time at or shortly prior to the time of the accident, and who was familiar with the formation and rock in the “Gloria Hole,” after having given evidence to the effect that ordinarily the miner and not the mucker makes the inspection, and that the inspection consists of picking down loose material and sounding the face to see if it is solid, and that such inspection would disclose loose rock, was asked the following question by counsel for plaintiff:
“Q. What would you say as to whether or not an experienced, competent miner could determine by sounding or picking in a formation such as this ‘Gloria Hole’ was, and is, as to whether or not a quantity of approximately 200 pounds was loose or not — what I mean is, could he determine whether or not that was loose or not by sounding and by picking, and making the tests that usually the ordinary miner would make?”
Objection was made on the ground that the question is incompetent and immaterial and calls for a conclusion, and that no proper foundation for it had been laid.
The evidence of "Wooton then in the record was that the rock fell from the incline, that it weighed 200 or 300 pounds, and that it broke when it struck the pile of ore.
It is insisted that Baxter was not qualified to answer the question, because it was not shown that he was familiar with the formation in the incline itself. Throughout the whole
Opinion evidence is admitted in some cases, if not in all cases, as a matter of necessity. It is in such cases the best evidence the nature of the subject-matter affords. Chamberlayne, Ev. section 1982; 17 Cyc. 40-45. The question of fact at issue in this particular case was whether or not there was any method by which the looseness of a rock hanging in a mine could be discovered. The jury could not pass upon that question without the aid of evidence of some kind. The best evidence might be a view of the rock at the instant prior to its fall or immediately after the blast, or sounding it in the presence of the jury; but such evidence never was obtainable. The best evidence of whether a person was or was not permanently injured by an accident would be an examination made some years after the accident; but the court cannot wait. As a matter of necessity, it admits opinion evidence to show the permanence of the injury. In this case, per necessity, the best evidence of the fact as to whether or not the looseness of the rock could have been discovered before the rock fell was an opinion from an expert as to Avhat sounding would discover.
The question put to Baxter may lack perfection of form, but in substance it asks for his opinion as to whether or not
Coal Co. v. Berberich, 94 Fed. 329, 36 C. C. A. 364;