Harvey v. Alturas Gold Mining Co.

MORGAN, J. The parties by their attorneys filed a stipulation to the following effect: That the defendant waives upon appeal all exceptions to the amount of the verdict, and consents that the grounds of excessive damages stated in defendant’s notice of intention to move for a new trial may be stricken from the record, and defendant admits, for the purposes of this appeal, that the injuries proved to have been received by the plaintiff were sufficient to support the amount of damages found by the jury, if plaintiff was entitled to recover damages against the defendant, and it is agreed that the evidence as to the character of the plaintiff’s injuries and the amount of damages sustained by plaintiff be stricken from the record. This eliminates from the record and from consideration in this court all questions, except the question as -to whether the verdict is against the law, and as to whether improper evidence was permitted, and whether improper instructions were given or refused. The evidence shows that the plaintiff was injured in repacking the bucket upon the pump-rod; that he had done this work but on'ce before the occasion on which he was hurt; that this was the eighteenth day of July, 1886; that one Abel Rowe was foreman of the said mine, and that when the plaintiff undertook to repack the bucket he discovered that the doorpiece to the chamber, which is usually taken off for the purpose of repacking the bucket, had been broken. This was on or about the eighteenth day of July, 1886. The plaintiff, sworn as a witness on his own part, in reference thereto, testifies as follows: “I was a pumpman, and was employed for that purpose on the Ida Elmore mine. I worked on the night shift. I am acquainted with the working of the ? Cornish pump — the kind used in this mine. Have been mining all my life. Abel Rowe was foreman of the mine; he was my superior officer. When I was going to work on the evening of the seventeenth day of August, 1886, I met Mr. Rowe. He told me that the bucket at the fourth level was failing, and that it would have to be changed so that I could get the water up for the men to work in the morning. After supper I told the men I was going to change the bucket, and told them to stop at the three-hundred foot level.. The men got all the blocks down, made 'the frame fast, and then I went down. We lifted the pump column about two feet; then I put a block under it, right between the two joints. This block was there for that purpose. The men lowered the column back onto this block; then 1 called up to them to screw up the yokes tight, as tight as they could draw them. I told the men then to take off the blocks and put them on the bucket rod, which they did, and then lifted it up to where we had to change it. I took off the old bucket and put on the new one. I then called to them to lower away. They tried to lower the bucket to its place, but it was tight. I put my hands into the top to keep it straight and make it go into the cylinder. The men above gave the rod a little jar and the whole thing came down on my arms, and I was fastened right there. I told the men to take the yokes off the bucket-rod, put them on the column and lift it off. They did this and got me out, and afterward took me to the surface. This is not the usual way of changing the bucket. When the column is the same size as the working barrel, we took the bucket clear out at the top and changed it, otherwise we took off the door-piece. I could not take it out at the doorpiece because.it was broken and had been mended in such a way that it could not be taken off. I first knew the doorpiece was broken on the 16th to the 18th of July. I changed the bucket then. I put this block in between the joints where the column was broken. It was a three by four scantling, about two feet long”. I used everything there was there to make it safe. There was nothing else there to use. I met Mr. Rowe the next morning, and asked him if the doorpiece that was lying there at the surface would not fit. He said it would exactly. I said, “You had better have that new one put on, because if there are any slips when — 519 — ■a man is changing the bucket, he will have his aims cut off.” He said he would ask Captain Anthony, superintendent, about it. I asked him afterward if he had seen Captain Anthony ■about it. He said he had, and that he said he would have the new doorpiece put on as soon as possible. It went on three or four days, and I spoke to Mr. Eowe again. He said he had been talking to Captain Anthony about it, and he (the captain) said he was going to change the pole. Eowe then told me they were going to lower the pole. This would do away with the draw-lift with the broken door. They wanted to get ore enough ahead to keep the mill running while they were making the change. Somewhere about the first week in August, 1 met Captain Anthony myself. He asked me how things were going. I told him there was nothing on the main rod, if the thing should break, to keep it from going to the bottom of the shaft, and in case of a breakage when the men are changing the bucket, there will be some man get hurt, if not killed. He said they were going to change the pole from the third level to the fourth, and do away with that draw-lift with the broken doorpiece that was there. He said he was going to do it as soon as they got quartz enough ahead to keep the mill running while they were making the change. If the doorpiece had not been broken, we would have lowered the bucket down from the working barrel to the chamber, and changed the bucket through there. This would have been perfectly safe. I had to call the men to help me fix the pump. The night I was hurt I called five or six men — might be seven. I could not have put in more props; if we had wo could not work to fix the bucket. I changed the bucket twice while I was there; the first time about the 16th to the 18th of July, and then when I was hurt. I did it the first time the same way as the last. The column might have been supported without the block being put in. It might stay all right, but I did not think it safe. I put the block in to malee it perfectly safe. I considered that when I had the block in and the yokes up tight, it was pretty safe. I thought the thing was safe enough. I considered I was taking very little chances when I had the prop in. I can’t hardly say that I considered that it was taking any chances. I had no suspicion it would fall.” — 520 — George Slack, -sworn on the part of the defendant, testified as follows: “That the bucket was put in a number of times while I worked there, and was always done the same way; that is, by breaking the pump column and lifting the bucket to this place and changing it there. Never, so far as he knew, changed at the doorplate. Didn’t know whether the doorpiece was then broken or not. Sometimes the block was used between the-parts, and sometimes it was not. Either way he considered safe. He assisted in changing- the -buckets himself every day while there.” P. E. Erickson, sworn, testifies that he was a machinist, and had been one for years; that he understands the Cornish pumps, and describes the method of changing the bucket ou the pump. The witness swears that the yoke will hold up, when properly screwed up, more than you can put on it; that it will hold between three and four -tons; that this column above where it was taken apart with the rod, would not weigh over ten or eleven hundred. In a test they put on three thousand four hundred and sixty pounds, and it held it up. If the yoke was screwed up tight, any little shaking done on the top would not shake it down. This a man who had never tightened up the yokes could not be trusted to do, unless he was shown how first. The proper place to change the buckets in a Cornish pump is through the doorpiece, but this was broken and it could not be done there. That pipe does not rest ou timber at all. It is suspended by the yokes altogether, and works that way. Donovan, for the defense, swears that sometimes the pump in the Elmore mine was filled with water, and they could not change the bucket at the doorpiece; then they would have to break the column in the same way this was done. That he had assisted in doing this since this accident occurred, and it was safely done. “All the precaution necessary is to screw the yokes up tight; sometimes we put a pair of blocks on. Have been working as shift boss and foreman in that mine two years and had charge of the pump. I have changed the bucket there many times. In doing so, we tightened the yokes and sometimes put a block in below; 'at other times we would not. One yoke will hold sixty-five feet of the column and the pump-rod.” — 521 — E. Koch, sworn, witness on the part of the defense. He swears that he is a mining engineer, and has made it a study. Knows how much one yoke will support; has made a test. It will support three thousand six hundred pounds, and would support more. O. S. Watson, an experienced mining man, swears that the column may be suspended by the yokes with perfect safety; no danger at all. If the yoke was properly screwed up, there was no- danger at all. Yokes are generally used; sometimes yokes and props. There is always more risk in breaking the column and changing the bucket than in changing it at the door. In the latter ease there will be no risk at all. There is much of the testimony on this subject that we have not thought it necessary to copy into the opinion, as it substantially agrees with that already given. A few facts must be held to. be fully proven. The pump was defective, in that it had a broken doorpiece to the chamber below where the bucket worked. While the evidence shows that the bucket might be changed in safety, or in comparative safety, by uncoupling or breaking the column, still the fact remains that if the door-piece had been whole, and in good condition, so that the bucket could have been changed, through the doorpiece, that the accident would not have occurred and the plaintiff would not have been hurt. The court is unable to say that this accident was the result of carelessness on the part of Smith, the fellow-servant who cerewed up the nuts on the jroke. Smith was not only a fellow-servant, but he was at the time under the direction of the plaintiff. He seems to have had considerable experience in working with bolts and in screwing up nuts with the wrench. Had worked some time — about two years — with bridge companies, and was doing this kind of work when so engaged. He swears that he screwed up those bolts as tight as it could be done; thinks he went over them three times at least. Plaintiff swears that he put the stull in, which was there for that purpose. There was no negligence on the part of plaintiff ; that is apparent to the court. The question as to whether there was contributory negligence on the part of the plaintiff, or his fellow-servant was a question for the jury, and we cannot disturb the verdict on this ground. The evidence shows — 522 — that all means were used which were at hand to make the necessary work safe. The next question for the court is a more difficult one. Plaintiff knew of the danger as soon as he discovered the broken doorpiece, which he did about July 18th. They refused to fix it then, but told him they would fix it on the first of the month. He had two or three conversations with Rowe, the foreman, in regard to this, before the first day of August, 1886. The first of the month passed and it was not fixed. He saw the superintendent, Anthony, and spoke to him about it, and warned him that if anything slipped when they were changing the bucket some man would get hurt or killed. Anthony replied that he was going to change the pole and do away with the chamber with the broken doorpiece as soon as they got ore enough ahead to keep the mill running. There was then a promise at each time that the complaint was made that an arrangement would be made that would do away with the danger. The time at last was left in. uncertainty. Had the plaintiff a right to rely on this promise and continue on his work? There was also the fact that he had been obliged to change this bucket but once in the two months he had been there at work. Under these circumstances, could he remain in the employment without taking the risk upon himself ? In Hough v. Railway Co., 100 U. S. 217, Justice Harlan says: “The master is under obligations, whether a natural person or a corporation, not to expose the servant when conducting the master’s business to perils ot hazards against which he may be guarded by proper diligence upon the part of the master. To that end the master is bound to observe all the care which prudence and the exigencies of the situation require, in providing the servant with machinery or other instrumentalities adequately safe for use by the latter.” “If the servant, after discovering the defect in the machinery, continues to use it without giving notice to the proper officer of the company, he would undoubtedly be guilty of such contributory negligence as to bar a recovery, so far as such defect was found to have been the efficient cause of the injury. But there can be ho doubt that where the master has expressly promised to repair a defect, the servant can recover for an injury ? caused thereby, within such a period of time after the promise as it will be reasonable to allow for its performance, and as we think for an injury suffered within any period which would not preclude all reasonable expectations that the promise might be kept.” (Hough v. Railway Co., 100 U. S. 224; Conroy v. Iron Works, 62 Mo. 35; Patterson v. Railway Co., 76 Pa. St. 389, 18 Am. Rep. 412; Le Clair v. Railroad Co., 20 Minn. 9.) Cooley on Torts, section 559, says: “If the servant, having the right to abandon the service because it is dangerous, refrains from doing so, in consequence of assurances that the danger •shall be removed, the duty to remove the danger is manifest and imperative, and the master is not in the exercise of ordinary care unless, or until, he makes his assurances good. Moreover, the assurances remove all ground for the argument that the servant, by continuing the employment, engages to assume the risks.” Justice Harlan further says, in Hough v. Railway Co., supra: “We may add that it was for the jury to say whether the •defect in the pilot was such that none but a reckless engineer, utterly careless of his safety, would have used the engine without it being removed. If, under all the circumstances, and in view of the promises to remedy the defects, the engineer was not wanting in due care in continuing to use the engine, then the company will not be excused for the omission to supply proper machinery upon the ground of contributory negligence.” (See, also, Ford v. Fitchburg R. R. Co., 110 Mass. 261, 14 Am. Rep. 598; Laning v. New York etc. R. R. Co., 49 N. Y. 521, 10 Am. Rep. 417.) The facts in Hough v. Railway Co., supra, are almost precisely similar to those in the ease at bar. In both cases, the plaintiff knew of the defects in the machinery, and complained to the proper person to have the defects remedied. It was not done, but a promise was given that it would be remedied within a reasonable time. In the case of the defective engine, the appliances were in constant use, while in the case at bar there was no danger whatever, except when they were required to •change the bucket. The plaintiff had been required to change the bucket but once before the accident occurred; embracing a period of over two months. Then it was done without any. accident, but after this time the plaintiff repeatedly complained — 524 — to the foreman and the superintendent of the defective pump, and was promised that it should be fixed, or the use of the chamber with the defective doorpiece done away with; and the promises seemed to be such that he had a right to rely upon. This was also a question for the jury. (Greene v. Railway Co., 31 Minn. 248, 47 Am. Rep. 785, 17 N. W. 378.) O'Rourke v. Union Pac. Ry., 22 Fed. 191, is cited by appellant, and the following language quoted: “He (the employee) has the right to wait a reasonable time to consider the circumstances of the case, and to give notice to his employers that he is in danger — time enough to see whether the employer means to have the defect remedied; time to see the general way in which he conducts his business; and if he finds that he intends to use defective machinery or to conduct his business in a dangerous manner; finds it is to be his habit; finds that after he had been notified he still intends to conduct his business in that way, and then-goes on and continues in the work, it is fair to presume that he takes the risk.” This may be assumed to be the law, and no one knows better than the attorneys for the appellant that the language of the court in this, and any case, must be taken with reference to the facts in such case. In the above case the facts were that the plaintiff was a car-repairer ; that he was accustomed to make such repairs as could be made, with the ear to be repaired, standing with other ears on the sidetrack; that it was the duty of the company to furnish him with a red flag, to set up near where he was at work, to warn the engineer that he was at work under the car, and that the car must not be moved. He had done this work six or eight months and no flag had been furnished him in all that time, and he had asked for none. He had made no request to be furnished with a flag, and while so engaged under a car, repairing it, the ears were moved and he was injured. He was held to have taken the risk upon himself. In the case at bar no such circumstances exist. The plaintiff had been at work for two months, it is true, but he had complained to the foreman on several occasions of the defect in the machinery, and at each time he had been promised that it would be remedied. It was not done, but during all that time he had been obliged to repair the bucket but twice; once very soon after he com — 525 — menced work for the company, again one month afterward when he was hurt; and he had been promised only a short timé before the accident occurred that the chamber in which the defect existed would be taken out. Had the plaintiff a right to believe, in view of the statement, that they were going to change the pump, by putting the pole down, and taking away the chamber with the broken doorpieee, thereby removing the danger •entirely before he would again have to change the bucket? Might he rely upon the promises? Would a prudent man so conclude, in view of all of the facts, that he had changed the bucket once by using the yokes and prop, which other persons having knowledge of the machinery believed could be safely done. Having repaired the bucket once without accident, he doubtless believed he could do it again with like success, but in doing it the second time he was injured. Hnder these circumstances it would hardly be said, as a matter of law, that he took the risk. As has been said, this was a question for the jury under all the circumstances of the ease, with proper instructions from the court. The ease of Foley v. Jersey City Electric Light Co., 54 N. J. L. 411, 24 Atl. 488, is cited. The language used by the court in this case is very strong, and in some instances seems to overstep the true rule as to assumption of risks by the employee, but in the mjain the law as laid down is like the other cases. It is substantially stated in the syllabus, which is by the court, and is as follows: “When one enters upon a service he assumes to understand it, and takes all the ordinary risks that are incident to the employment, and where the employment presents special features of danger such as are plain and obvious, he also assumes the risk of those; and 3. The cases rigidly hold the doctrine that the servant takes upon himself such definite and determinate risks as are obvious, and no action will lie against the master for injuries to the servant in such cases, where he has not induced the servant to remain by a promise to remove the danger.” There can be no question but these quotations correctly state the law. The servant, when he accepts the service, assumes all the risks incident to the employment — that is, incident to the employment when the employer furnishes proper -and reasonably safe machinery, an obligation to do which is — 526 — always upon the employer. A risk or hazard which arises from “the use of defective machinery is not a risk incident to the employment, and where the machinery is defective and is complained of by the servant, and a promise is given to have the-defect remedied within a reasonable time, the servant does not assume the risk incident to the employment with such defective-machinery within such time. The court in the above case goes on to say“If the servant has full and equal knowledge with the master that the machinery or materials employed are defective, and he remains in the service, this may constitute contributory negligence; but if it appears that the master has promised to mend 'the defect, the mere fact of his continuing in the employment does not of itself, as matter of law, exonerate the master from liability; but the question of contributory negligence is one for the jury.-” This language is specially applicable to the case at bar, in which promises were made that the defect should be remedied. In the case of Alcorn v. Chicago etc. R. Co., 108 Mo. 81, 18 S. W. 188, the court held that the servant violated one of the rules of the company, which forbade the switchman going between'the ears while in motion to couple or uncouple cars, by reason of which he was injured, and therefor he could not recover. Various propositions of law are stated in this opinion adapted to different circumstances and facts, but they do not differ from those already laid down. In the case of Baltimore etc. R. Co. v. State, 75 Md. 152, 32 Am. St. Rep. 372, 23 Atl. 310, there were no facts that would enable the plaintiff to recover under any state of the case. The principle stated in the opinion of the court does not differ in any respect from those cited in other cases herein mentioned. It appeared that the deceased had been accustomed to pass through the tunnel two or three times a day for two or three months, and was therefore entirely familiar with the tunnel, and had done this without any complaint. He was afterward killed by a projecting roof in the tunnel. It was held under such a state of facts that he assumed all the risks incident thereto'. The case is not in point. A reference to the facts in the case of Gibson v. Railway Co., 63 N. Y. 453, 20 Am. Rep. 552, will at once show that it is not at all in point in the case at bar. — 527 — Beach on Negligence, section 139, is referred to, and states the true rule under that state of facts, and the next section (110) gives the rule precisely applicable to the facts in the case at bar, thus: “It is the rule applicable to this matter that the servant, when the defect or danger is brought to his knowledge, when he discovers that the machinery or the instrumentalities furnished for his labor are unsafe or- unfit, continues in the employment without protest or complaint, he is deemed to-assume the risks of such danger, and waives any claim upon his master for damages in case of injury. That is, if he continues in the employment without protest or complaint. The protest or complaint takes it out of the category of those cases where the servant assumes the risk. It is, of course, true that the employee having notice that the employer intends to use old or defective machinery, may enter into an express contract to use such machinery. If then he is injured thereby, he cannot recover. He may go further. Without an express contract he may enter upon the use of defective machinery, knowing it to be such, or having abundant or even reasonable, opportunity to know its defects or its dangerous character, and continues in the use of such defective or dangerous machinery without complaint, and without anyr promise on the part of his employer to remedy the defect, or remove the danger, and if he is injured thereby, he cannot recover. (Hickey v. Taafe, 105 N. Y. 26, 12 N. E. 289; Michael v. Stanley, 75 Md. 464, 23 Atl. 1095; Plunkett v. Donovan, 36 N. Y. St. Rep. 91, 12 N. Y. Supp. 454; Heyden v. Smithville Mfg. Co., 29 Conn. 558.) The state of facts and conditions, however, set forth above do not exist in the case at bar. It is scarcely necessary to comment upon all the eases cited, as none of them change the principles already announced which govern this class of cases. The general rule is: 1. The servant undertakes,-when he engages in a certain kind of work, that he has the necessary skill and experience to perform the work he undertakes; that he understands the management of the machinery necessary to perform this work; the machinery generally used to perform such work, or the particular machinery which he sees is in use, in this particular instance; that he will exercise the ordinary care used by a man of prudence in — 528 — performing such work as he has engaged to perform for his employer. If he fails in either of these, and is injured m consequence, he is guilty of contributory negligence and cannot recover. On the other hand, his employer engages to furnish machinery and tools ordinarily used in the performance of such work; that he will keep such machinery and tools in reasonably •safe and good condition while such work is being performed. If the employer fails in either of these particulars, and the servant is injured thereby, the servant having filled all the conditions required on his part, can recover a reasonable sum for the damages by him suffered. If the servant, after he engages in the work, discovers that the machinery or tools' furnished him for use are defective, or are not in good condition, and that they, or some of them, are dangerous, then he is charged with •another duty- — that of informing his employer, or his agent who is directing the work, of such defect. If the employer, after being informed, refuses to put the machinery or tools in good condition, then the servant should decline to do the work with such machinery. If he does not do so, and is injured thereby, he cannot recover; but if, when so informed, the employer promises to remedy the defect within a reasonable time, the servant may continue in the work, and if he is injured thereby within such reasonable time, without any fault on his part, he can recover for such injury. The question of the fault of the fellow-servant does not, as we think, enter into this case, •as there is no evidence that there was any fault on the part of the fellow-servant. Tested by these rules, and by the principles hereinbefore stated, with the facts as they appear in evidence m this case, we think the plaintiff is entitled to recover a reasonable amount for the injuries suffered by him. The question as to the amount of damages to which plaintiff is entitled, having been taken out of consideration by the stipulation, we give no opinion in Tegard to it. As to the admission of improper testimony. The plaintiff" was permitted to prove over the objection of defendant that .shortly after the accident occurred the broken doorpiece was replaced with the new one. This was improper evidence, but in view of the fact that we think the plaintiff was entitled to ? recover upon the evidence that was entirely competent, it cannot be held to have prejudiced the case of the defendant; the same may be said of other evidence that was questionable. Objection is made by appellant to the second instruction asked by the plaintiff and given by the court, and a portion of said instruction is quoted, because no mention is made in said instruction of the ignorance or knowledge of the employee of the actual condition of the appliances and machinery and his consequent assumption of the risk. This point was covered in three or four of the instructions given by the court at the request of defendant, and the instructions must all be taken together. The third instruction given by the court at the request of plaintiff is objected to on the ground that the jury might infer from it that the servant only assumes ordinary risks, and that although he acts, knowingly and voluntarily, he does not assume extraordinary risks. This defect is also covered by instruction 5 of the court, and also in those given by the court on its own motion, and by instructions 3 and 4 given for defendant. And these instructions are so strongly in favor of the defendant under the circumstances connected with this ease, that had the verdict been in favor of the defendant, the plaintiff might well have complained of them; as they ignore the fact that plaintiff had complained of the defect and had been promised that it should be remedied. Instructions 3, 5, 6, 7, 9,10 and 11, asked on the part of the defendant, while correct as abstract principles of law, are not applicable to, this ease, for the reason, as stated above, that they ignore the fact that complaint was made by the plaintiff on different occasions, and promises were given that the defective machinery would be repaired or taken away. No. 8 requested by defendant is scarcely intelligible, perhaps by reason of the copy in the record being incorrect; and was properly-refused for that reason. Judgment affirmed. Costs awarded to respondent. Justice Sullivan concurs. Justice Huston, having been of counsel in the court below, took no part in the hearing or determination of this case.