United Verde Extension Mining Co. v. Koso

HUNT, Circuit Judge (after stating the facts as above). [1] It is argued that there was no evidence tending to show that plaintiff was not negligent, or that his negligence did not cause the accident. The Employers’ Liability Act of Arizona (chapter 6, title 14, Revised Statutes of Arizona of 1913, §■ 3154) provides that, to protect the safey of an employee in mining, the employer shall be liable for the injury— "caused by aujf accident due to a condition or conditions of such occupation, * * * in all casos in which such death or injury of such employee shall not have been caused by the negligence of the employee killed or injured.” By section 3159: “The question whether the employee may have been guilty of contributory negligence, or has assumed the risk, shall be a question of fact and shall at all times, regardless of the state of-the evidence relating thereto, be left to the jury, as provided in section 5 of article XVIII of the state.Constitution: Provided, however, * * * the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.” Section 5, art 18, of the Arizona Constitution is as follows: “Sec. 5. The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury.” 'The statutes cited were considered in Calumet & Arizona Min. Co. v. Chambers, 20 Ariz. 54, 176 Pac. 839, where the court held that it was incumbent upon one who relies upon the Employers’ Liability Law to prove that while engaged in the performance of duties required of him lie was injured, and that the injuries were caused by an accident due to a condition of such employment, and not caused by the negligence of plaintiff. Plaintiff’s evidence met the obligation imposed. Assuming that he was telling the truth, he was on his first shift, shoveling waste from the floor where he was told to work. The place was about 15 feet from the face of the drift; he did not know the height of the tunnel, except that the top was too high for him to reach with his pick; there was no timbering at the point above him, and while bending over to get a shovel [372] full of waste there was a cave-in from above, waste fell upon him, and. he was injured. If credible, this evidence negatived any reasonable deduction that the accident was caused by negligence on the part of the plaintiff, and the court correctly held that the case was one for submission to the jury under appropriate instructions. If it had appeared! that it was part of the duty of Koso to pick down the loose rock, as well as to-collect it after it was down, and that he was injured by the falling of the rock which he picked, it might be argued with much force that he contributed to the injury he suffered. But it is not reasonably to be inferred from the testimony of Koso that it was his duty to do more than to shovel waste after it came from the face of the tunnel. It is true that defendant’s witness said that Koso was told to pick down loose rock and then go ahead and “muck”; but, as different conclusions could reasonably be drawn from the evidence, the ascertainment of the truth was for the jury. [2] A physician testified that he examined Koso just before the trial and found a hernia starting on the right side, loss of half the power of his right hand, and fractures of .lumbar vertebra and marks of injury to the shoulder blade. The testimony covered some injuries not included in the complaint, especially the hernia and loss of power in the hand; but no objection at all was made to the testimony of the doctor. After the physician testified, plaintiff offered in evidence the American Mortality Tables. Defendant objected, on the ground that, in the absence of proof, the tables do not apply to miners engaged in mining, as the tables are based on the law of averages, and without some explanation the mortality of men engaged in such hazardous work would not fall within the law of averages. In view of the fact that there was evidence tending to show that the injuries which plaintiff said he had received were permanent in character, we are of opinion that it was within the sound discretion of the court to permit the introduction of the mortality tables, notwithstanding the fact that the plaintiff was engaged in a hazardous calling. Wilkins v. Flint, 128 Mich. 262, 87 N. W. 195; Richmond R. R. Co. v. Garner, 91 Ga. 27, 16 S. E. 110; Tweedy v. Inland Brewing Co., 75 Wash. 25, 134 Pac. 468. [3] The court instructed the jury that the tables were admitted in order to enable them to determine the probable duration of the plaintiff’s life, and that in actions for personal injuries, if the injury "is of a permanent character, in estimating damages, expectancy of life is an essential element, and that to show such expectancy standard mortality tables are admissible; that it was proper that the jury should consider the nature of the employment of the person injured, and that he was engaged in a more hazardous employment than the average men with reference to whom the tables were made up; and that, while the tables were not an absolute guide for the judgment of the jury, they might, however, be considered in connection with all the other evidence in the case. The court carefully charged that consideration of the mortality tables was only proper if the 'jury reached the conclusion that the injuries received by Koso were permanent, and that if they concluded that his injuries were “temporary, and not permanent,” then [373] the tables as to his expectancy of life should not be considered at all. Defendant below made no requests for more explicit instructions with respect to the mortality tables, and we find no error in the charge explaining their relation to the issues.' Vicksburg R. Co. v. Putnam, 118 U. S. 545, 7 Sup. Ct. 1, 30 L. Ed. 257; L. & N. R. Co. v. Burns, 242 Fed. 411, 155 C. C. A. 187. [4] It is said the court erred in its instruction as to what elements could be taken into consideration by the jury in considering what damages, if any, plaintiff might recover. But, no exception having been taken to the part of the charge covering that subject, defendant cannot complain that it has been prejudiced. We may say, however, that upon the question of damages the instructions show that the court told the jury explicitly that they should consider whether the injuries, if any, were permanent, to what extent, if any, plaintiff had suffered, whether he had been disabled or incapacitated to earn a living at all, the age of plaintiff, what his occupation and income were, and whether his employment would have continued. [5] The point that the amount of the verdict was excessive was presented on motion for new trial, which was overruled by the court. This court will not disturb the ruling. Copper River & N. W. R. Co. v. Reeder, 211 Fed. 280, 127 C. C. A. 648. [6] Error is assigned because the court overruled defendant’s motion that plaintiff be required to give security for costs. The affidavit in support of the motion was made by the claim agent of the defendant, who stated that to the best of his knowledge and belief, “and so far as he has been able to ascertain, the plaintiff, Mike Koso, is not the owner of any property out of which costs could be met by execution sale.” Plaintiff’s counsel objected to the motion, on the ground that the application did not comply ydth the laws of the state of Arizona, and did not show that the plaintiff was not the owner of property out of which costs could be met by execution sale.. The statute (section 643, c. 24, R. S. of Arizona) provides that: “At any time before trial, on motion of defendant, supported by affidavit showing that the plaintiff is a nonresident of the state, or that the plaintiff is not the owner of property out of which the costs could be made by execution sale, the court shall order the plaintiff to give security for the costs; and if the plaintiff fails so to do within ten days next after the order is made, the ease shall stand dismissed.” Inasmuch as the record fails to show that the defendant saved an exception to the ruling of the court, there is no question for decision. It would seem, however, that an affidavit “showing” that plaintiff is not the owner of property out of which the costs could be made ought to contain more than the mere statement that, so far as affiant is able to ascertain, plaintiff is not the owner of any property. [7] The complaint, when filed, contained two counts, the first based upon the Employers’ Liability Law of Arizona, and another founded upon the common law. Defendant demurred to the “whole complaint,” upon the ground of the improper joinder of two several causes of action, and also filed a general demurrer to the first cause of action, on the grounds that no negligence was pleaded and that the constitutional [374] rights of defendant were being invaded1 without due process of law. A few days before the trial, March 22, 1920, by order of court, plaintiff elected to proceed under the Employers’ Liability Act, and dismissed the other cause of action, to which action defendant excepted. Defendant argues that the court erred in not ruling upon the demurrer to the “whole complaint.” Inasmuch as the ruling upon the demurrer to the first cause covered the main points, no prejudice could have resulted. Moreover, defendant made no request of the court for a ruling before it proceeded to trial, and reserved no exception to the failure of thfe court to rule. [8] It is said that action under the Employers’ Liability Act (section 3162) cannot be “maintained” unless commenced within two years from the day the cause of action accrued, and that section 710 of the statutes of Arizona provides that an action for personal injuries shall be “commenced and prosecuted” within two years after the cause of action shall have accrued. As the cause of action in the present instance accrued in December, 1917, and trial was not had until March, 1920, we are asked to hold that the limitation of the statute has been rendered ineffectual. We cannot agree with that position. Plaintiff below, having commenced his action within two years after the cause accrued, ought not to be denied a right to proceed with it merely because the court delayed ruling upon the demurrers or failed to make an order of election until more than two years passed after the accrual. After careful examination of the record, we find no prejudicial error, and must affirm the judgment. Affirmed.