Harrington v. Eureka Hill Mining Co.

ZANE, O. J.: This action was brought to recover damages to plaintiff in consequence of personal injuries, caused, as alleged, by the negligence of the defendant, in putting plaintiff to work, in a drift of its mine that reasonable prudence and care required to be -first timbered, without warning .him of danger. This is an appeal by -the defendant from a judgment of the district court upon the verdict of the jury awarding the plaintiff $10,000 damages. In deciding this. appeal, we are not at liberty to consider the evidence further than it may be necessary in deciding upon the correctness of the rulings of the court assigned as error, in applying to the evidence principles of law, and so far as neces [304] sary to determine whether any essential fact is entirely unsupported by the evidence. The defendant assigned as error the following statement in the charge of the court: “The burden is upon the defendant to establish contributory negligence on the part of the plaintiff in this case.” The rule of evidence undoubtedly is that the burden of proof lies on the party who substantially asserts the affirmative of the issue, and the rule, as applied to proof of contributory negligence in this state, is that the defendant is required to allege contributory negligence on the part of the plaintiff, and to prove it by a preponderance of the evidence, and the burden was not upon the plaintiff to- disprove it. That is undoubtedly the rule in this state, and the court did not err in so charging. The statement complained of, standing alone, might have misled the jury; but, when considered- with other parts of the charge, it is not probable they were. If the evidence introduced by the plaintiff furnished sufficient proof of contributory negligence on his part, of course, it was not necessary for the defendant to prove it also. In determining the question of contributory negligence on the part of the plaintiff, it was the duty of the jurors to consider the whole evidence bearing on the issue. If the plaintiff offered any evidence tending to prove or disprove negligence on his part, the jurors should have considered that, with the evidence offered by the defendant, if any, tending to prove or disprove it, and it was the duty of the court to -so inform the jury. In deciding the issue as to .the negligence of the defendant, and the issue as to the contributory negligence of the plaintiff, it was the duty of the jurors to consider all the evidence before them bearing upon either. Taking the portion of the charge above quoted in connection with the other parts of it, the jurors must have understood they [305] should consider all the evidence before them in deciding the issue as to contributory negligence. They were told it was for the plaintiff to prove his case by a preponderance of the evidence, and that, if the evidence bearing upon his case was evenly balanced, or it preponderated in favor of the defendant, the plaintiff could not recover; that, if the danger to which the plaintiff was exposed was equally visible to plaintiff and defendant, and the plaintiff had equal or superior opportunity to that of the defendant to ascertain the danger, the defendant was not liable. While the court informed the jury that the burden was upon the plaintiff of proving negligence on the part of the defendant, and the burden was upon the defendant of proving contributory negligence on the part of the plaintiff, as reasonable men they must have understood, from the entire charge, that they were to decide those issues from all the evidence bearing upon them, and that, in so doing, they were not limited to the consideration of the evidence offered by either side. The defendant also assigns as error the following language of the charge: “If you find for the plaintiff, then it will become your duty to assess the damages; and in finding damages you should assess such amount as will fully compensate him fq.r such injuries as he has proven.” In this the court clearly limited the damages to the amount proven. The use of the word “fully,” which is complained of, was unnecessary; but it meant no more than such damages as were proven. The defendant further urges that the damages found by the jury were excessive, and that the court erred in overruling its motion to set aside the verdict for that reason. There was evidence to support the finding, though it was conflicting as to the extent of plaintiff’s injury. In this [306] class of cases, the amount of damages is a fact, to be found bj the jury from the evidence, and, if there is any evidence to support the finding, we are not at liberty, under the constitution of this state, to review error in making it. If there is no evidence from which to find the fact, we can say it was found contrary to law, and erroneous, and reverse for that reason. We find no reversible error in the record. The judgment is affirmed. Baktch and Minee,, JJ., concur.