Federal Mining & Smelting Co. v. Hodge

GILBERT, Circuit Judge (after stating the facts as above). [1] It is contended that the trial court erred in admitting evidence of the custom of the miners to ride six at a time on the skip, one of them sitting on the bail and cable. The contention relates to evidence which was admitted on the examination'of one of the plaintiff’s witnesses. On cross-examination he had testified that six men would ride on the skip, one of them upon the bail. On redirect examination he testified that the men had been riding six at a time ever since the skip had been installed. He was then asked: “Q. Was there any rule there as to how many should go up? A. Never heard of any. Q. Any orders? A. No, sir; never heard of any. Q. Any custom? A. Well, the custom was six. Q. Always?” To the last question objection was made. The objection was overruled, and an exception was taken, and, although there was no answer to the last question, it appears that when the witness was recalled he testified, over the objection of the defendant, that when six rode it was the invariable custom that one of them rode on the bail. The objection which was made to this testimony was that the defendant was not bound by any such custom. If by that it was meant that proof of such custom was not admissible to show liability on the part of the defendant, the answer is that it was not admitted for any such purpose, but for the purpose of showing the customary method of using the skip, and for the light which it might incidentally afford on the question of the plaintiff’s contributory negligence. In that connection the court charged the jury that the mere fact that others may have ridden in the same position which the plaintiff occupied that day was not conclusive of the question of his negligence or want of negligence, and also instructed the jury as follows; “You should bear in mind that the evidence does not show, at least expressly show, the assent of the company to any particular manner or mode of use of the skip.” We find no error therefore in the admission of the testimony. Nor was it error to permit one of the witnesses to answer the question: “Was there any bell system for signaling?” The objection to [608] this testimony was that it had been shown that the flash signal worked perfectly on all occasions except 'one, and that it was the province of the court to determine whether or not that system was sufficient. -The witness had already testified without objection from the defendant that there was no indicator on the hoist. The testimony was but explanatory of the method which was used for signaling the engineer at the hoist. [2] Error is assigned to the refusal of the defendant’s requested instruction that the jury return a verdict in its favor. The request was based upon the evidence which, it was said, showed that there was no actionable negligence on the part of the defendant causing the injury complained of, that the injury was caused by the plaintiff’s want of care and negligence, and that he assumed the risk. We think the court committed no error in denying the request and in submitting to the jury the question of the defendant’s negligence; the evidence tending to show that negligence consisted in the fact that the defendant maintained and operated the skip without installing, an indicator, by means of which the man at the hoist could determine from time to time the exact location of the skip. There was evidence tending to show that the method which was used for signaling to the man at the hoist was defective, and that it was because of its defects that the accident occurred. The defendant used that method in violation of the express provisions of a statute of Idaho of the year 1909, which provided: “Whenever a steam, electric, gas, air, or water driven hoist is used in handling of men in mines, it shall be equipped with an indicator, placed in clear view of the hoist engineer and geared positively to the shaft or drum of the hoist, and so adjusted with dial or slide as to provide a target or indicator that will at all times >show the exact location of the bucket, cage or skip.” And the statute further provided that a copy of the bell signals should be posted before the hoist engineer and on each station. In support of its contention that the motion for a directed verdict should have been granted on the ground of the plaintiff’s contributory negligence, the defendant cites decisions in which it has been held that an employé who rides upon the pilot of an engine in going to and from his work is as a matter of law guilty of contributory negligence, on the ground of the inherent and obvious danger of so doing. But it does not appear that the plaintiff was riding in a place which was necessarily dangerous. The only conceivable danger was that of collision between the skip and the bulkhead. If there had been a proper indicator, so that the hoist engineer could have known where the skip was, that danger would have been eliminated. But the defendant says that the plaintiff ought to have removed himself from the place in which he was riding when the skip stopped on the way to permit two men to get off; that, when they did so, he should have taken the place of one of them on the skip. But the evidence shows that the pause was only momentary, that the men who stepped off the skip were on the lower part thereof, that there was no vacant place adjacent to where the plaintiff was, and that there was nothing to indicate to him that there, was greater danger in proceeding as he was than there had been before the skip stopped. [609] [3] But it is urged that in riding on the bail the plaintiff violated the statute of the state of Idaho, which forbids any miner to ride on the bail of a skip, and that therefore he cannot recover. That suggestion is made for the first time in this court. It was not brought to the attention of the court below by any plea, proof, or request for an instruction or ruling, and no error is assigned to any action of the court below in regard to it. This court can consider only errors of law in the rulings of the lower court. Lesser Cotton Co. v. St. Louis, I. M. & S. Ry. Co., 114 Fed. 133, 140, 52 C. C. A. 95; Jones v. United States, 179 Fed. 584, 592, 103 C. C. A. 142; City of Pittsburgh v. Jonathan Clark & Sons Co., 154 Fed. 464, 467, 83 C. C. A. 262; Hatcher v. Northwestern Nat. Ins. Co., 184 Fed. 23, 25, 106 C. C. A. 225; Walker v. Sauvinet, 92 U. S. 91, 23 L. Ed. 678; Robinson & Co. v. Belt, 187 U. S. 41, 50, 23 Sup. Ct. 16, 47 L. Ed. 65; Mercantile Trust Co. v. Hensey, 205 U. S. 298, 306, 27 Sup. Ct. 535, 51 L. Ed. 811, 10 Ann. Cas. 572. Nor do we think that the case should have been taken from the jury on the ground that the plaintiff assumed the risk, for it cannot be said that the defect of the device for signaling to the hoist engineer was so patent and obvious that he should be charged with knowledge of it. The only exception to the charge of the court was to that portion thereof which calls to the attention of the jury the fact that they may take into consideration any custom, which existed on the part of the employés, of riding on the bail. The argument in support of the ex-, ception is that such a custom would not exonerate the plaintiff of the charge of contributory negligence, and assumption of risk. The argument is based on a misconception of the instructions as they were given. The court did not instruct the jury that the existence of such a custom would exonerate the plaintiff from the charge of contributory negligence.. The instruction on that subject was that: “The mere fact that others may have ridden in the same position which he occupied that day is not conclusive of the question of his negligence or want of negligence.” And the court submitted to the jury the question whether an ordinarily reasonable man, of ordinary prudence, would have occupied the. position he did on the skip, and said that they might take into consideration as another circumstance the fact that some others used it, also the testimony of one of the witnesses who had ridden on the car for three years and had never occupied that position, and added: “All of these facts and .circumstances are to be considered by you in determining whether or not the plaintiff himself acted carelessly and negligently in occupying that position at the time of the accident.” We find no error. The judgment is affirmed.