Davis v. Holy Terror Mining Co.

HANEY, J. This is an action to recover for injuries sustained by the plaintiff while employed in the defendant’s mine. The jury returned a verdict for $10,000, judgment was entered thereon, defendant’s application for a new trial denied, and this appeal taken. The issues involved are thus stated by the learned circuit court in .its charge to the jury, to which statement no exception was taken : “That the defendant company had in operation for some time prior to October 22, 1901, and up to within a few minutes before the injury of the plaintiff, certain machinery for the purpose of supplying air to the point where-this plaintiff and others were working, which machinery is commonly called an air compressor, and which machinery also operated the pumps for the purpose of raising the water from the bottom of the shaft; and while the plaintiff and others were working in said shaft, the said machinery, which was insufficient in capacity and by reason of the negligence and carelessness of the defendant, its agents, and employes, became out of order in such manner as to fill said mining shaft with gas and heat, thereby burning the body of this plaintiff in such a manner as to cripple him for life, thus preventing him from earning a living at manual labor, and causing him great mental and bodily pain and suffering to his damage in the sum of $20,000. The defendant answering plaintiff’s complaint, admits that it is a corporation, and was at the time mentioned in the plaintiff’s complaint transacting business upon its-property at Keystone, in said county and state, and was using in the prosecution of its business certain machinery and workmen, and among the workmen employed was the plaintiff, but it specifically denies that the plaintiff has been damaged in the sum of $20,000, or in any other sum whatever, by 'reason of the acts complained of in his complaint, and denies that it is, in any way, accountable for any injuries which were received by the said plaintiff at the time mentioned in plaintiff’s complaint. It further denies that the-said injuries, if any were received by plaintiff were caused by the-negligence, carelessness, or fault of the defendant, its agents, or405 servants, or that such injuries were received because of defective machinery, or the negligent management of such machinery by its agents, servants, or employes, and alleges that if the .plaintiff received any injuries at the time complained of, it was the result of, his own negligence and carelessness, or that of his co-workers engaged in the same general business with him.” It is contended the court erred in overruling defendant’s objection to the following question propounded to one of plaintiff’s witnesses on his direct examination: “Q. In order to communicate from the bottom of the winze to the Keystone Mill, for instance, what would be necessary? (The defendant objects to the question as incompetent; objection overruled, and defendant excepts.)” The contention is untenable: (i) Because the objection was insufficient to justify a review on appeal; (2) because, if there was error in the ruling it was harmless, the same facts having been testified to by another witness without objection. State v. LaCroix, 8 S. D. 369, 66 N. W. 944; Mathews v. Silvander, 14 S. D. 505, 85 N. W. 998; Muller v. Flavin, 13 S. D. 595, 83 N. W. 687. This question was asked by the plaintiff of one of his witnesses: “Q. Did you observe the condition of the receiver and the pipe running from the receiver to the mine at that time, and if so1 in what condition did you find it? By Mr. Bennett .(attorney for defendant). Q. How long was. this of which you are speaking prior to the time of the alleged accident in the mine? A. Well, as near as I can come to it, it was two weeks. Defendant now objects to the testimony as to the condition of the machinery at that time or any opinion expressed by the witness on the condition of the machinery two weeks before the alleged accident. Testimony must show the condition of the machinery at the time of the accident. Objection overruled. Defendant excepts. A. It was red hot.” The answer was not responsive ; there should have been a motion to strike out on that ground; and, moreover, the time was not so remote as to render the evidence inadmissible. There was no reversible error in respect to this ruling. Plaintiff’s instruction No. 6, was as follows: “You .are instructed, gentlemen of the jury, that it is the duty of the master, in this case the defendant, the Holy Terror Mining Company, to* fur — 406 — nish its servants with a reasonably safe place in which to work, reasonably safe and proper materials, machinery and appliances, and to keep them in proper repair and reasonably safe; and you are further instructed that these duties are personal in their nature, and the master cannot escape liability by the attempted delegation thereof to some one else. The servant has the right to presume that the master has discharged his duty in these regards, and if you find from the evidence in this case that the air'compressor in use at the Holy Terror Mine on the 22nd day of October, A. D. igot, was not kept in a reasonably safe condition, but was negligently allowed to get out of repair, whereby the compressor became ignited, forcing gas and’foul air into the compartment of said mine in which the plaintiff was engaged at work, and that said gas and impure air suffocated and overcame him, causing him to fall upon the pump, or other appliances in said compartment, and resulting in the injuries of which he complains, then I instruct you that the defendant would be liable to the plaintiff for said injuries and you will assess the plaintiff’s damages.” Concerning this instruction defendant’s assignment of error is as follows: “The court erred in giving instruction No. 6, requested by the plaintiff. Por the reason that said instruction is misleading'm this that plaintiff’s right to .recover is based upon the negligence on behalf of the defendant, without informing the -jury that even under all the circumstances supposed in the instruction the plaintiff should be found without fault or negligence on his part and since there is no other instruction given by the court, that can be 'reasonably taken to cure the defect above specified in said instruction No. 6.” Presumably this assignment corresponds with the specification of error relating to the instruction in the bill of exceptions or statement of the case upon which the motion for a new trial was based, otherwise no objection to the instruction was preserved, and no other ground of attack than the one assigned is now available. Hedlun v. Mining Co., 16 S. D. 261, 281, 92 N. W. 31. It is not tenable for the reason that the court was not required to cover every phase of the case in that particular instruction, and in another portion of its charge the jury was instructed that “every one is responsible, not only for the ,result of his own unlawful acts, but also for any — 407 — injury caused to another by his want of ordinary care or skill in the management of his property or person except so far as the latter has unlawfully or by-want of ordinary care brought the injury upon himself. ’’ In the absence of any request on the part of the defendant to particularly charge with respect to contributory negligence, this general statement on the subject was sufficient. The contention that the court erred in giving plaintiff's instruction No. 9 is clearly untenable for the reason that substantially the same instruction was given on request of the defendant. There being no available objections to the charge, the next inquiry is whether the evidence, considered with reference to the issues submitted to the jury, was sufficient to justify a verdict for the plaintiff. If the jurors understood and obeyed the court's instructions they must have been satisfied that the plaintiff was without contributory fault and that the defendant was negligent with respect to the selection of its employes, the equipment of its mine, or the condition of its appliances. We think the evidence disclosed no want of care in the selection of employes, but as to the character and condition of defendant’s appliances there certainly was at least room for differences of opinion by equally intelligent and impartial persons. When the accident occurred, theplaintiff with other employes, was working in a winze which extended in a nearly vertical direction about ioo feet down from the tenth level. The drills, pump, and hoist were operated by means of an air compressor. • Concerning what occurred at the time of the accident, the plaintiff testified: “All four of us were there at work when we discovered the g'as was escaping. Andy Miller remarked something about bad air, and I do not know what it was. The sensation produced was real warm and hot and oppressive, and affected our breathing-. When I found that gas was escaping, I cranked the machine down as tight as I could, and we all got on the bucket. The bad air seemed to be escaping from the machine and pump. The air looked misty and didn’t look like it always did. I do not remember anything about the heat, just remember that it was hot there. We all got on the bucket and rung three bells, and he hoisted us up to this i8-foot and stopped and we stood there and rung six or seven times more, and I do not know how many times; per — 408 — haps we stood there 15 or 20 minutes and didn’t get any answer, and he would not hoist us and we started to climb out. The air appeared to he getting worse all the time. It appeared like an hour and a half to me. Andy Miller got out first. He started up the cable, or this go-devil.as we called it, and I started out right after him, and he went' up about four sets of these timbers and I was up about three sets up above the pump and he fell right.back over me, and that is the last that I can remember. My sensation was to get up on the hanging rod, but I never got there. The air was getting-worse all the time. It seemed like I was smothering. I do not remember of falling. Miller fell over me, he didn’t hit me. 1 saw nothing of him after I saw him fall. The next I remember I was down town in the old building that Al. Arrington was living in. I do not remember what time of day it was. * * * I was suffering considerable pain from my body and leg. My mind wasn’t clear as to what had taken place.” It is undisputed that the compressor became ignited, forcing gas and foul air into the compartment of the mine in which the plaintiff was working, and that such gas and impure air suffocated and overcame him, causing- him to fall upon the pump or other appliances in the compartment, and resulting .in the injuries for which he seeks to- recover. Who or what was responsible for the igniting- of the compressor? Was the jury justified in finding, in the language of the court’s charge, “That the compressor was not kept in a reasonably safe condition, but was negligently allowed to get out of repair?” The accident occurred October 22, 1901. Charles Stevens, an experienced engineer, called as a witness by both parties, testified:. “This machine went foul or took fire about six weeks before the 22nd of October, 1901. At the time it took fire there was some indication of escaping gas in the mill there. One of the valves hung up, and it came back through the receiver. The compressor shoved the valve back, and it refused to go back and then that left a free opening; the intake port was open, and that left direct communication, and it went out through the intake pipe, and the gas escaped in that way. The gas had got to go ’out with the pressure and whichever way the pressure goes the gas goes. * * * So that if the machine is running in that condition it will pump the gas and hot air into the mine.” — 409 — James M. Rintz testified on behalf of. the plaintiff as follows: '‘Mining, is my business.. I was called to help remodel the air compressor, at the Keystone Mill, connected with the Holy Terror Company’s property, just before this accident occurred — a month or six weeks before the 22nd of October. We found the air cylinder full of burnt grease or oil, and the water jacket stopped up with mud around its cylinder. Two parties assisted me in cleaning this machinery out. The foreman of the job Was Charles McCreary. The other man I was not acquainted with. Mr. Trengrove, the superintendent, called, me to assist. I think it was about 9 o’clock at night. I had gone to bed, and he came and woke me up to help. He asked me if I would come there and help Charlie McCreary clean out the air compressor, that it was a shift’s work and that it had burned out and had to be remodeled. We didn’t clean it out, we took the burnt grease out of the cylinder, and took a wire and a hose in order to get water down there .where it should go; we took a wire and ran down through the water jacket to the discharge in the water jacket and shoved, the hose in that mud to try bo force it through, but I 'don’t think we ever got it through.” The deposition of Thomas J. Whalen, offered on behalf of the plaintiff, contained these statements. . “My business is engineering and have followed it nine years. * * * I remember the accident at the mine October 22, 1901. I was not present at the time. I saw .some of the dead men. I. remember the accident in which Miller, Polman, and Crouter were killed and Minot Davis was injured. Prior to that time I had occasion to examine the engine and air compressor used to supply the men with air, and to run the drills, pumps and hoists. * * * It was about two' weeks before the accident ; it was in a very dangerous, careless condition. It was full of corroded burnt oil-. The ports were all burnt with corroded oil. The valves were badly burnt with corroded oil caused from the oil and fire; the valves and springs we had to use a sledge hammer to .get them out; the receiver was very badly burnt, also the pipes to the receiver. That is about the case so far as I know. The superintendent of the mine.s, Mr. Trengrove, employed me to examine this machinery. I overhauled the pipes leading to the receiver, and I overhauled the air end of the compressor. Also- disconnected one — 410 — engine from the other, run her on one leg. As to being warm or hot; she was badly expanded, when I examined it, from-heat. The pipe leading from the compressor to the receiver was red hot. * * *' The gas was all through the mill. * * * A day or two afterwards I had a conversation with the superintendent. Just a day or two after the compressor caught fire the first time. Mr. Trengrove wished to know what condition the compressor was in, after I overhauled it. I told him it was in a very dangerous condition and would have to- be watched very carefully because the springs had expanded so badly that it took some time to get them down to' running size again.” Charles Stevens recalled for further cross-examination, stated: “I spoke in my direct examination about repairing this compressor some weeks before October 22, 1901. Mr. Trengrove knew that she had gone foul; he was right there immediately after it caught fire. I operated the compressor after this repair. I talked with Trengrove about it. As to the condition of the machinery I told him that the compressor was in a very poor shape at that time, and he ought to arrange it in some way to stop an hour every day at noon until we got her in first-class siiape again. The proper thing to have done with it would have been tO' take out the valves until we were sure that they were in proper working shape; clean the valves after the thing- had caught fire the first time; it had an effect on the valves to make them stick in some way. He didn’t give any orders at all, except one day he called me to^ stop for an hour. I was under the directions of the superintendent in that matter.” So there was ample evidence tending to show that the compressor was not kept in a reasonably safe condition; that its condition was known to defendant’s superintendent, who was not a fellow servant of the plaintiff’s; and that the superintendent neglected to take proper precautions to prevent such accidents as the one causing the plaintiff’s injury. Was the plaintiff shown to have been guilty of contributory negligence? In determining whether or not a plaintiff has been guilty of such contributory negligence as will defeat a recovery, his actions must be measured by the actions of an ordinarily prudent man, under the same circumstances and in the same position. Heckman v. Evenson, 7 N. D. 173, 73 N. W. 427. — 411 — The men in the winze were not in the slightest degree responsible for the igniting of the compressor. It does not appear that either of them neglected any duty preceding the time when gas and foul air began to invade the mine. The danger was imminent; escape difficult. In absence of convincing proof to the contrary, it should be inferred that one thus suddenly confronted with such a situation would make every effort within his power to preserve his own life and avoid injury. There was brief time for reflection.' All were menaced with the same dangers; all confronted the same difficulties. Naturally each would do what seemed best under the circumstances, and there is nothing in the evidence to warrant the conclusion that these unfortunate men acted otherwise than ordinarily prudent and experienced miners would have acted under the same circumstances; The plaintiff says he “cranked down the machine as tight as he could,” that the proper signals were.given to hoist the bucket, and that when it stopped he endeavored to escape bj the only other means provided by the defendant. The criticism that he remained too’ long on the bucket before attempting to climb the walls of the winze is not well founded. In view of the undisputed facts it is more likely the men were on the bucket 15 or 20 seconds than that they were there “15 or 20 minutes.” When delay means death, seconds may seem longer than minutes, or even hours, to him who waits. But, if they did remain 20 minutes, it does not follow that the plaintiff failed to exercise reasonable care. Neither he nor his companions could have safely left the bucket until all hope of its being being hoisted in response to the signals 'was lost. Had they abandoned the bucket, and had it then ascended, as it was expected to do, the consequences might have been more serious than if they remained. In weighing such chances the judgment-of equally prudent persons might differ. Plaintiff’s situation must be viewed as he saw it, not as it now appears in the light of subsequent events to persons who are exposed to no perils. Notwithstanding one witness states that he found the bucket off the go-devil when'he descended the winze after the accident, it would be unfair to infer that it was not in place while the signals to hoist were being given and the miners were waiting to be hoisted. If the .hoisting of the' bucket had been obstructed by reason of its being off the go-devil, would — 412 — not that fact have been observed by the engineer in charge at the tenth level and by the men who were waiting? It was probably misplaced, if at all, when the men abandoned it. We are satisfied there was nothing in the'evidence to justify the jury in finding the plaintiff guilty of contributory negligence, and that the evidence was sufficient to justify a verdict for the plaintiff. Finally, it is earnestly insisted. that the verdict should be vacated and a new trial granted because of “excessive damages appearing to have been given under the influence of passion or prejudice.” The measure of damages, in such actions as this, is the amount which will compensate for all the loss or harm suffered by the plaintiff, in person or property, proximately caused by the breach of defendant’s obligation, whether such loss or harm could have been anticipated or not. Rev. Civ. Code, §§ 2287, 2312. The legislature has -wisely refrained from attempting to fix any precise and definite rule. Within the limits of compensation for proximate detriment the amount recoverable must depend upon the circumstances of each peculiar case, and is left to the good sense and discretion of the jury. In making the estimate the jury should take into consideration the age and condition in life of the plaintiff, the physical injury inflicted, the bodily pain and mental anguish endured, all expenses incurred in the treatment of the case, and any and all damages which it may appear from the evidence have resulted or will result irom the injury. Whether the injury is temporary or permanent, and whether a capacity to earn money has been reduced by the .accident,' may also be taken into- consideration. 13 Cyc. 137. And when .the amount has been so ascertained it must stand, though the court might, as a juror, have awarded a different sum. But the estimate must express the honest judgment of fair-minded men, and if the recovery is so- excessive as to clearly indicate that it was given under the influence of passion or prejudice, a new trial should be granted in order that the estimation may be made by a competent tribunal. Rev. Code Civ. Proc. § 301, subd. 5; Murray v. Leonard, 11 S. D. 22, 75 N. W. 272. In the case at bar it must be presumed that the jury was properly instructed as to the measure of damages. It must also be presumed that the jurors were free from passion and prejudice unless there .is sufficient difference be — 413 — tween the verdict and the amount, of recovery warranted by the evidence to compel the conclusion that .the action of the jury was influenced by improper motives. There was evidence tending to prove this state of facts: When the accident occurred the plaintiff was 26 years of age with an expectancy of 38 years. He was in good health, sound in body and limb, weighed • about 160 pounds and was earning $3.50 per day as an experienced miner. In consequence of the accident he was unconscious for several hours, and.confined to his bed for about 5 weeks, during which time he suffered intense .physical pain and great mental anguish, fearing he might never again be able to support his wife, who was ill, and two- children, who were of tender years. It was more than two months before he could perform manual labor of any kind. At the time of the trial he weighed not to exceed 135 pounds, his hearing was seriously impaired, and the effects of the burns on his abdomen and leg, resulting from his falling, while unconscious, upon the ignited machinery of the mine, were apparent and declared by competent authority to be permanent. The jury and trial judge, without objection, were given an opportunity to ascertain the extent of the plaintiff’s injuries, not available to this court, as shown by the following excerpt from appellant’s abstract: “(The plaintiff here exhibited his leg» to the jury.) It has been healed up about two months. My leg is numb from the injury. I can’t straighten out the limb only .this much (showing). It gives me pain. It is not near as strong as -the other. In working it pains me, and is weak, and makes me lame. (Plaintiff now exhibits to the jury the injury he received in the abdomen.) These burns (last exposed) gave me pain during the time I was sick, and considerable since. They have been healed up about two months.” So the trial judge and jurors saw what is not attempted to be described in the statement of the case. • Under such-circumstances would it not be presumptions for this court to set its judgment above that of the learned circuit judge, who, upon due reflection and consideration, decided that the damages were not excessive? It is true the plaintiff admitted on the witness stand and others testified that he had done manual labor after the accident for which he was paid at the rate of $2.50 per day. But the ability to earn wages' is only one element of damage in this case. It is not — 414 — the sole criterion. It does not follow that the loss of a limb is not a detriment because the miner who suffers the loss might make more money in some other vocation than he was making before the injury was received. More was involved in the assessment of these damages than plaintiff’s ability to earn money before and after the accident. There was physical pain, mental anguish, expense, loss of time, loss of health, and permanent injuries, the extent and probable consequences of which were fully exhibited to the jury but which are not disclosed by the record before us. Being absolute^in the dark as to the real nature and' extent of such injuries this court cannot ascribe improper motives to the jury without assuming that it was impossible for -the plaintiff to have sustained injuries justifying' a verdict of $10,000. Actions for personal injuries, wherein the question of excessive damages has arisen, are numerous. Many may be found where $10,000, or less was deemed excessive and as many more where a larger amount was sustained. But, as has been said, each case must be determined with reference to its own facts and circumstances and affords no guide for deciding other cases beyond the general principles which it establishes. So, being unable, upon the record before us, to conclude that the amount of the verdict clearly indicates the influence of passion or prejudice, the presumptively honest judgment of the jury must stand. The judgment and order appealed from are affirmed.