De Lopez v. Central Arizona Mining Co.

[479] By Court, French, C. J.: This action is necessarily brought under the statute by the representative of the deceased,\ Florence Lopez. For about seven years prior to his death he had been employed in working as a miner in appellant’s mine, the Yulture mine. On June 21st he was killed while working in said mine. The place in which he was at the time working was an open cut about one hundred and fifty feet wide at the top and about fifty or sixty feet deep. The rock was blasted and excavated, and pried down the side of the open cut, from near the surface, by other miners who were accustomed to give notice of the blasts and descent of the rock. Lopez’s location was in the bottom of the cut, his work being the removal of the rock, thus thrown down by the miners above, to a chute. He was killed by some rock falling on him while so working. The case was tried by a jury, which returned a verdict for plaintiff. Defendant moved for a new trial, which was denied. Defendant appeals to this court, from both the judgment and the order denying it a new trial. The complaint does not state that the dangerous condition of the mine was not known to deceased, nor that it could not, with reasonable effort, have been discovered by him, nor that deceased was free from negligence, nor that he prudently attempted to avoid the danger. Defendant demurred to the complaint, on the ground of want of sufficient facts to support the action, but specified the defects, and the omission to charge that the accident occurred without the fault of deceased is not among the specifications, and the practice is, that the party shall be confined to his specifications, although, if no specification be made under this ground of demurrer, it might stand on any defect. But this specific defect is raised on the introduction of plaintiff’s testimony, and on the motion for a nonsuit it became a proper subject for consideration. On this point, in this class of cases, there is very nearly an equally balanced conflict of practice in the courts of the different states, and we are not disposed to hold that absence of fault on the part of plaintiff must be averred and proved by plaintiff, while probably the preponderance of authority and practice hold [480] it to be matter for the answer and defense. An examination of authorities will show that the rule is not inflexible, even in the courts that hold respectively to the one or the other practice, but must depend, in some cases at least, on the facts, exigencies, and circumstances of the particular pleadings and cases. The court did not, then, err in refusing the nonsuit so far as this point is concerned. Then did the evidence on the part of plaintiff at this stage of the case show contributory negligence on the part of deceased ? In McGlynn v. Brodie, Justice Sawyer, on page 380, 31 Cal., speaking for the court, says: “ The risk of the accident was a risk incident to the employment in which the plaintiff was engaged. Possessed of all the knowledge which the defendants had as to the condition of the cupola, and with an opportunity of becoming better informed in the progress of the work in which he was engaged, plaintiff accepted the employment, and continued in it down to the moment of the accident. Where a party works with or in the vicinity of a piece of machinery insufficient for the purpose for which it is employed, or for any reason unsafe, with a knowledge or means of knowledge of its condition, he takes the risk incident to the employment in which he is thus engaged, and can not maintain an action for injuries sustained and arising out of accidents resulting from such defective condition of the machinery. This is the principle established by all the cases.” This is the doctrine laid down, not only in all the cases, but in the elementary works of Shearman & Redfield on Negligence, Thompson on Negligence, and other treatises on the same subject. Without passing upon the question whether plaintiff’s evidence shows that deceased knew of the danger at the point where he was working or had the means of knowing, does not the whole testimony in the record show without substantial conflict that he had such knowledge ? As to the general rule that a plaintiff can not recover for the negligence of the defendant if his own want of care or negligence has in any degree contributed to the result complained of, there can be no dispute. Robinson v. W. P. R. R. Co.. 48 Cal. 421. and cases there cited. [481] But it is necessary to distinguish between the act and fault of the complaining party. It is no defense to an action of this kind that the act of the deceased might have contributed or did contribute to the injury. It must be by his fault, not merely his act. Was there negligence on the part of defendant ? or, in the language of the statute, was there wrongful act, neglect, or default on its part ? Plaintiff alleges in her complaint: “That defendant wrongfully and carelessly neglected to keep in good and safe condition and repair [said mine], by building and maintaining in its tunnels, shafts, and excavations proper and sufficient supports and pillars, to prevent said tunnels and excavations from caving in,” etc. This is a broad allegation as to the mine generally, but the question in the case is as to the point only where the accident occurred. This was neither a tunnel nor shaft, but an open cut, and the work at this point consisted in blasting and prying down the rock, not in supporting it in place, and the evidence of defendant shows that this was the only practicable way of working the mine at this place, and there is no conflicting evidence to this whatever. In order to recover, the plaintiff in an action of this kind must show that the act complained of was caused by the wrongful act, neglect, or default of defendant. It must also appear, by implication or otherwise, that the injured party did not in any degree contribute to the injury by his fault. All proceedings, rulings, or instructions which conflict with, or even ignore, these last two propositions are erroneous in all trials. Tested by this rule, the statement on motion for a new trial in this case shows good, broad, cogent, decisive, and most ample grounds in support of the motion. The judgment and order denying a new trial must be reversed, and the cause remanded for a new trial, and it has been so ordered. Pinnei, J., concurred