Chiara v. Stewart Mining Co.

AILSHIE, C. J. This action was instituted to recover damages for wrongfully causing the death of a laborer who was engaged in loading and unloading ore and waste cars in appellant’s mine. The verdict is assailed on the charge that the evidence wholly fails to show negligence on the part of the mining company or the means by which the deceased met his death. It is evident to us that the bumper projecting only three inches on the back end of an ore car is not a safe place for anyone to ride. Whether or not the deceased was warned, as [478] claimed by appellant, against riding at that place, it remains a fact, nevertheless, that he was permitted to ride there and that others discharging the same work had done so before this accident. It is apparent, however, that this was equally as safe, if not safer, than any other place the, company had provided for the loader to ride in performing his duties at this mine. To have attempted to let the cars back up and jump onto the motor would have been attended with as much danger, owing to the narrowness of the space provided for standing room at the side of the track. So far as it appears to us from the record before us, about the only way in which the laborer could have acted with greater safety to himself would have been to refuse to work in the capacity of loader under such conditions, and this would have probably meant his discharge. The master knew the conditions better than the servant, for it appears that the servant had only worked on his job a few days before his death. There is also evidence in this case which tends to support the contention of respondent that the car on which the deceased was riding was in a dangerous and defective condition, which caused the wheel to climb the rail at the switch frog and thus derail the car. This would have thrown the deceased from his place on the bumper and dropped him under the car where he was crushed to death. This case contains facts which it was necessary for the court to submit to the jury, and their finding, however much it may diverge from the conclusion one might reach from reading the printed record, is, nevertheless, conclusive on the appellate court. The presumption must be indulged, in the absence of proof to the contrary, that one who was killed while engaged at his duties was exercising reasonable care and precaution for the protection and preservation of his person and life, and that he was possessed of the ordinary instincts for self-preservation. (Adams v. Bunker Hill etc. Min. Co., 12 Ida. 643, 89 Pac. 624, 11 L. R. A., N. S., 844; Fleenor v. Oregon Short Line R. R. Co., 16 Ida. 781, 102 Pac. 897.) It has also been urged that this action could not be maintained, for the reason that the plaintiffs failed to show that [479] they had complied with the provisions of house bill No. 26 of the 1909 session of the legislature (1909 Sess. Laws, p. 34), which act relates to the liability of employers and masters, etc., and was approved March 6, 1909. That act, among other things, by sec. 5 thereof, prohibits the prosecution of an action for compensation for injuries, unless notice be served on the employer within 150 days after the accident, giving time, place and cause of injury, and in ease of death it requires that the notice be given within sixty days after the death of the injured party. This act, by sec. 4 thereof, also limits the compensation to be recovered in case of death to the sum of $5,000. It is argued that the act of March 6, 1909, repealed all previous acts on the subject, and that since the right to recover for the death of an injured party is created by státute, this latter statute is the only statute under which recovery could be had. We shall not attempt to analyze this statute or point out at length the difference between this and the pre-existing statute, sec. 4100, Rev. Codes. We may say, however, that the act of March 6, 1909, appears to have been adopted for the purpose of extending the rights of employees and limiting the defenses previously accorded to employers. The main purpose, evidently, was to abrogate the fellow-servant doctrine. This latter statute is almost an exact counterpart of a similar statute which has long been in force in Massachusetts, Alabama, Mississippi, South Carolina, Oregon and Colorado. The courts of all these states appear to have taken the view that the adoption of this statute did not repeal or abrogate any existing law with reference to the right of recovery by the heirs or legal representatives of a deceased person for an injury causing the death of such person. This same point was argued in the supreme court of Colorado in Colorado Milling & Elevator Co. v. Mitchell, 26 Colo. 284, 58 Pac. 28, and the court disposed of the question as follows: “Counsel for appellant concede that an employee who survives an injury can still avail himself of his common-law remedy, notwithstanding the statute of 1893, but contend that [480] the same rule does not apply to one whose right of action is given by the statute of 1877. We cannot see any reason for this distinction, or perceive why the right of action created by the statute is abrogated by the subsequent act, any more than one that existed at common law, since no such intention is indicated in terms or by implication. It is well settled that a statute providing a new remedy for an existing right does not take away a pre-existing remedy without express words or necessary implication. (23 Am. & Eng. Ency. of Law, p. 393, and cases cited.) The same rule of construction is applied to statutes in derogation of existing statutes as applies to those in derogation of common law, and the same presumption obtains that no change is intended, unless the later statute is clear and explicit to that effect. (Suth. St. Con., sec. 139.) The statute of 1893, as we have before stated, does not attempt in any manner to repeal, modify, 'or restrict any of the provisions of the statute of 1877, nor to change or abridge any right or remedy thereby given. It merely provides that the parties who were entitled by law to sue in case the injury results in death shall have the right of compensation and remedy that it gives to the employee.” In Bussey v. Gulf & S. I. R. Co., 79 Miss. 597, 31 So. 212, the supreme court of Mississippi were considering the question as to whether the statute had repealed or abrogated the preexisting law of Mississippi on the subject, and in speaking with special reference to the difference in the amount of damage to be allowed under the new law and the pre-existing law, the court said: “It is said the measure of damages is different in the two acts, and there is difference as to who may sue. Certainly. Do they not relate, as shown, to wholly different subject matters? The measure of damages and the parties to sue might well be different, — might be just what the legislature chose to make them. There is no conflict possible to be seen because of the different measures of damages, except where the two wholly different acts, with wholly different histories and purposes, are confused and blended, instead of being kept separate and distinct.” [481] For holdings to the same effect, see Colo. Milling & Elevator Co. v. Mitchell, 26 Colo. 284, 58 Pac. 28; Columbus etc. R. R. Co. v. Bradford, 86 Ala. 579, 6 So. 90; Ryalls v. Mechanics’ Mills, 150 Mass. 190, 22 N. E. 766, 5 L. R. A. 667; Statts v. Twohy Bros. Co., 61 Or. 602, 123 Pac. 909; Dennis v. Atlantic Coast Line R. Co., 70 S. C. 254, 106 Am. St. 746, 49 S. E. 869. We conclude that the act of March 6, 1909, is not in conflict with and does not repeal the pre-existing statute, conferring the right of action for a death claim. The fact that sec. 6 of the act provides that “the acts and parts of acts in conflict herewith are hereby repealed” did not have the effect of repealing sec. 4100, Rev. Codes, under which the present action is prosecuted. The case of Troxall v. Delaware L. & W. R. Co., 227 U. S. 434, 33 Sup. Ct. 274, 57 L. ed, 586, decided by the supreme court of the United States, February 24, 1913, is not in point and does not support the contention made by appellant. We find no error for which a new trial should be granted. Judgment affirmed. Costs awarded to respondent. Sullivan and Stewart, JJ., concur. Petition for rehearing denied.