Alaska-Treadwell Gold Mining Co. v. Cheney

162 F. 593, 89 C.C.A. 351, 3 Alaska Fed. 142, 1908 U.S. App. LEXIS 4473

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 10, 1908
• Docket: No. 1,514
• Status: Published

Opinions

GILBERT, Circuit Judge.

The defendant in error, who is administrator of the estate of Ole Linge, deceased, was plaintiff in the court below, where he brought the action to recover damages for the death of Linge by reason of the alleged negligence of the plaintiff in error, the AlaskaTreadwell Gold Mining Company. The case was tried with a jury and a verdict for the plaintiff was returned. The defendant moved for a new trial on various grounds, and also for an arrest of judgment upon the ground that it was conclusively shown by the evidence that the appointment of the plaintiff as administrator of the. estate of Linge was void. The motion for a new trial was denied, and the motion in arrest of judgment was granted. Judgment was thereupon rendered dismissing the action, to which judgment the plaintiff sued out a writ of error and brought the case here, where the judgment was reversed with directions to the District Court to enter judgment in favor of the plaintiff in the case for the amount named in the verdict, with legal interest from the date of the rendition of the verdict. 148 F. 808-811. Upon the going down of the mandate the judgment here directed was entered by the trial court, and was, of course, final and conclusive as between the parties thereto in respect to the question that was litigated, and in respect to any and every question which might have been raised and determined in this court on the hearing of the former writ of error. Guaranty Co. of North America v. Phœnix Ins. Co. of Brooklyn, 124 F. , 59 C.C.A. 376; James v. Germania Iron Co., 107 F. 617, 46 C.C.A. 476. But, as the only question that was in fact litigated or that could have been raised or determined by this court on the hearing of the former writ of error was the question in respect to the validity of the plaintiff's appointment as administrator of the estate of the deceased Linge, it is plain that that is the only question upon which the judgment of this court on that writ of error had any bearing. As a matter of course the defendant to the suit could not have obtained a writ of error to reverse the first judgment of the District Court, nor could it have assigned any cross-errors thereon for the reason that it was in no way aggrieved thereby; on the contrary, that judgment was wholly in the defendant’s favor, for it dismissed the action absolutely. When the judgment to which the present writ of error goes was entered by the court below in pursuance of the mandate of this court issued upon its judgment given on the hearing of the first writ Of error, the questions now presented for consideration were first opened to the plaintiff in the action. See Guaranty Co. of North America v. Phœnix Ins. Co. of Brooklyn, supra, where the subject was fully considered by the Circuit Court of Appeals for the Eighth Circuit, and where the conclusions above announced were amplified and sustained by numerous authorities. . The plaintiff’s intestate was at work sinking the main shaft of the Treadwell mine, and was about 800 feet below the surface. The shaft was perpendicular. Ore was being hoisted through the shaft from the 440 foot level by a skip and hoisting apparatus. The skip was a large iron bucket, and, together with its frame and its usual load, it weighed approximately five tons. It was hoisted by means of a cable to a point 60 feet above the mouth of the shaft, at which point the cable ran over a sheave wheel, and thence to a drum around which it was wound. While the skip with its load was being drawn to the surface the sheave wheel broke, the cable parted, and the loaded skip fell, carrying away two bulkheads below, and killing the plaintiff’s intestate. In the complaint three grounds of negligence were alleged: First, the usé of an old and weak cable; second, the use of an old, weak, much used and broken sheave wheel; and, third, the omission to provide sufficient bulkheads in the shaft. On the trial there was no proof of negligence as to the first and third of the grounds so alleged. The trial court in charging the jury-assumed that a reasonably sufficient bulkhead was constructed, and that a reasonably sufficient cable was provided, and submitted to the jury the question of the negligence of the plaintiff in error in using its sheave wheel.

It is contended that the trial court erred in denying the motion of plaintiff in error to instruct the jury to return a verdict in its favor, and it is urged that there was no evidence to go to the jury to show that the accident resulted from any defect in the sheave wheel, or that there was negligence in its use. Upon a careful consideration of the evidence, we think the contention is not sustained. It was in evidence that a short time before the accident a piece from 12 to 14 inches long had been broken out of one of the flanges of the wheel, and that the wheel had been repaired by placing a piece of iron on the outside thereof below the break, upon which the broken piece was put back and riveted. There was evidence that the wheel was made of cast iron. There was evidence of expert machinists that the wheel should not have been repaired at all, and that its use as repaired was dangerous. There was the testimony of the employé who was sent down to clear out the bottom of the shaft after the accident that he found a piece of the perimeter of the broken wheel about two feet long, with “a patch on the cast iron piece and a broken spoke.” Nor was there lack of evidence to show the causal connection between the defect in the wheel and the accident. There was testimony that one end of the break went through the rivet holes which had been made when the wheel was previously patched, and testimony that the second break was “on account of the patch not being put on in the right way.” There was testimony to show that, if the perimeter of the wheel were broken, the cable would naturally drop, and would be likely to break. In view of all this testimony, there was no room for the application of the doctrine of Patton v. Texas Pacific Ry. Co., 179 U.S. 658, 21 S.Ct. 275, 45 L.Ed. 361, viz., that where it is shown that one or two or more acts caused the accident, for some of which the defendant is, and for some of which it is not liable, the jury is not permitted to guess between them, and “find that the negligence of the employer was the real cause, when there is no satisfactory foundation for that conclusion”; for there is in the record testimony as to facts which, if credited, do furnish a reasonable explanation of the accident. Counsel for plaintiff in error in his motion for an instructed verdict admitted that the breaking of the wheel was “the primary cause of the accident.” It was shown that the fracture of the wheel would cause the cable to slip and to drop to the shaft, and that the cable would be likely to break, and it is in evidence that the wheel broke at the point where it had been previously patched, and there was expert evidence that it should not have been used at all after having been broken in the manner indicated in the testimony.

Error is assigned to the admission in evidence of the deposition of Knute Hansen. The deposition had been read to the jury on the former trial of the cause. When it was offered on the second trial, the objection was made that no sufficient foundation was laid for its introduction, in that it was not shown that the witness was over 100 miles away from the place where the court was held. Section 657 of part 4 of the Alaska Code provides that, before such a deposition can be used, “proof shall be made that the witness did reside beyond the service of a subpoena, or that he still continues absent, or infirm, as the case may be.” The record shows that, in answer to the objection to the introduction of the deposition, testimony was taken first of the deputy marshal, who testified that three or four days before he made inquiries for Knute Hansen in Juneau, Douglass, and Treadwell for the purpose of serving a subpoena on him, but that he could find no one who knew anything about him, but he admitted that he had not inquired at the mines in the Basin, whereupon the court said, “I think at least you should show he is not in any place in the vicinity of Juneau,” and directed that the deputy marshal telephone to see if the witness were not in the Basin. Another witness was called who testified that Hansen was not working in the Basin; that he had left the previous summer, and the witness had not seen him since; that he had received a letter from him saying that he went down to Copper Mountain; that he had never seen him around Juneau since, nor heard of his being there; that he could not say whether Copper Mountain was within 100 miles or not. On this showing the court admitted the deposition. We discover no error in that ruling. The court must have had knowledge of the surrounding country and of all the places mentioned by the witnesses, and we must assume that he reached his conclusion on proof sufficient to show that reasonable effort had been made to find the witness, and that he did reside beyond the reach of a subpoena.

The plaintiff in error contends that it was reversible error to admit in evidence certain drawings of the sheave wheel made by witnesses for the defendant in error; that these drawings are not made according to scale, and are so made as to indicate that the wheel was more weakly constructed than it was in fact. The drawings so made did not purport to be correct representations of the wheel. They were admitted in evidence as a part of and as illustrating the testimony of the witnesses, and in offering them counsel expressly stated that they were offered as illustrating the witness’ testimony showing the general nature of a sheave wheel. “I am willing,” he said, “that the court instruct the jury, and I ask the court to instruct the jury now that this is not to be taken as a drawing of the sheave wheel in question.” If there was error in the admission of these drawings so admitted not to be correct, it was certainly cured by the introduction in evidence by the plaintiff in error of carefully prepared drawings of the wheel made according to scale and measurement, the accuracy of which was not disputed.

It is contended that W. C. Angelí, who testified as an expert as to the safety of mechanical appliances, was not shown to possess knowledge of the customs and usages of the business to which his testimony related. The witness on his own testimony was a machinist by occupation, had served an apprenticeship of four years with Golden State Miner’s Iron Works of San Francisco, manufacturers of hoisting machinery, sheave wheels, etc., after which as journeyman with said concern for two years he did general work of all kinds, handling sheave wheels and hoisting machinery generally, and had for a period of five years been a machinist in a mine in Alaska similar to the Treadwell mine, and had for two years been a machinist at the Tread-well mine engaged in erecting the stamp mills of the plaintiff in error, and had had other experience in the line of his occupation. He testified that he understood how the strain comes on hoisting machinery, and that he had worked on the sheave wheels at the Treadwell mine, and had installed the hoist at Treadwell in the year 1898. Notwithstanding this evidence of his qualifications as an expert, it is argued that for want of evidence that he had knowledge and experience as to the customary and usual method of repairing a sheave such as the one in question he was not shown to be qualified to say, as he did, that it ought not to have been repaired at all, and that “it is an awfully hard thing to repair a wheel of this kind and bring it back to its original strength,” and that, if it were repaired, the proper way would be to have a piece of sheet steel extend underneath the frame, around on both sides, clear around the circumference of the wheel and rivet it. We do not agree with counsel for plaintiff in error that, before any witness could give such testimony as an expert, he must have had experience in repairing a sheave wheel. An expert machinist, with the general experience and training which the witness was shown to have had, should be assumed to have the knowledge requisite for the repair of old machinery, even if he had had no actual experience in repairing the particular device in question, and we think there was no error in permitting the witness to testify from such knowledge and experience as to the danger of using a broken sheave wheel or as to the proper method of repairing the same.

Error is assigned to the refusal of the court to give to the jury certain requested instructions. But, as the court properly instructed the jury on the points involved therein, no substantial right was denied the plaintiff in error in such refusal.

The bill of exceptions shows that Z. R. Cheney, the defendant in error, in arguing the case to the jury, used the following language: “That the defendant, the AlaskaTreadwell Gold Mining Company, was owned by the wealthy Rothschilds of England, who are gathering the wealth of this country and sending it abroad, and that, if the jury should return a verdict for the full amount prayed for, namely, $10,000, such amount would not equal 1 per cent, of the annual income of the defendant.”

To this argument and statement the defendant by its -counsel objected and excepted, and the court thereupon sustained the objection, and directed that no such argument be used. Whereupon said counsel for plaintiff immediately stated to the jury that he wished to withdraw said remark and requested the jury not to consider it, and the court both at that time and in its charge instructed the jury that it must disregard that and all other remarks of couñsel which were not borne out by the evidence. No honorable attorney would deliberately make such a statement to a jury. The misconduct was gross. It was made one of the grounds of a motion for a new trial, but the trial court in view of the prompt withdrawal of the remarks, and its own instruction to the jury not to consider the same, and the nature of the evidence in the case, held that it was not a sufficient ground for setting aside the verdict.

The assignment which directs our attention to the misconduct of counsel is that the court erred in refusing to grant a new trial on that ground. This, of course, is insufficient to bring the matter before this court, for the ruling of the trial court on a motion for a new trial is not assignable as error. But, under the power which we possess. under our rules to notice a plain error not assigned, we are disposed to enter into the consideration of the question, and, first, we inquire, what is the error which is here complained of? In order to exercise our appellate jurisdiction, error must have been committed by the trial court either in ruling or refusing to rule upon some question arising in the course of the trial. In this case the court promptly made its ruling. In 2 Encyc. of Plead. & Prac. 755, it is said: “In order that a party may avail himself in an appellate court of an objection for misconduct of opposing counsel in the argument of a case, he must not only interpose a seasonable objection, as has just been stated, but he must then press the court to a distinct ruling, and, if dissatisfied therewith, enter an exception, otherwise there is nothing presented for review.”

The same is said in substance in 2 Cyc. 713. In Crumpton v. United States, 138 U.S. 361, 11 S.Ct. 355, 34 L.Ed. 958, the court said: “It is the duty of defendant’s counsel at once to call the attention of the court to the objectionable remarks and request its interposition, and, in case of a refusal, to note an exception.”

In Dunlop v. United States, 165 U.S. 486-498, 17 S.Ct. 375, 41 L.Ed. 799, the court said: “In such cases, however, if the court interfere and counsel promptly withdraw the remark, the error will generally be deemed to be cured.”

In Sawyer v. United States, 202 U.S. 150-167, 26 S.Ct. 575, 50 L.Ed. 972, the court said: “The remark of the district attorney was not appropriate argument and should not have been made, but we see nothing more that could have been done than was done by the court as soon as the objection was made by counsel for the plaintiff in error. Counsel in summing up to the jury are under some excitement, and naturally may make a remark or statement which is improper, but there is on that account no ground laid for setting aside a verdict, where, as in this case, the court held it was improper, and the counsel withdrew and apologized for it.”

In Weeks v. Scharer, 129 F. 333, 64 C.C.A. 11, the Circuit Court of Appeals for the Eighth Circuit, in a case where counsel in argument made an unwarranted statement of facts not testified to, said: “This matter may be dismissed from further consideration with the observation that the attention and action of the court were at once invoked, and the court promptly sustained the objection and directed the jury to disregard the improper statement.”

There are undoubtedly cases of such flagrant abuse of the privilege of counsel that no admonition by the court will cure the error. The improper remarks of counsel may be of such a nature that, notwithstanding their withdrawal and the court’s instruction to disregard them, the jury, while honestly endeavoring to discharge their duty, and believing that their verdict is not influenced thereby, may nevertheless be unable to divest their minds of the impression so illegally and unfairly produced. But the question here is: At what point in the trial did the trial court err or fail to perform the duty which rested upon it? Its first and obvious duty was to instruct the jury not to consider the objectionable remarks. This was done. Was it also incumbent on the court of its own motion, without suggestion of counsel, to dismiss the jury and to proceed no further with the trial? Certainly such an error may be waived by opposing counsel, and we think it is too clear to require discussion that it is a waiver if he proceed with the case without further pressing the objection and take his chances on the verdict of the jury. In United States v. Alexander (C.C.) 119 F. 1015, Judge Newman, on ruling bn a motion for a new trial, well said, with reference to the improper language claimed to have been used by the assistant district attorney in his argument to the jury:. “When the attention of the court was called by one of defendant’s counsel to the use of this language, that these expressions were uttered, and the court stated to counsel in the presence of the jury in the most emphatic way that the language was improper and ought not to have been used, no further action by the court was requested and no exception was taken. On the contrary, defendant’s counsel seemed entirely satisfied with the action of the court at the time. If further action by the court had been desired, it should have been requested, and, if refused, an exception noted.”

And we hold in this case that, if counsel for the plaintiff in error was not satisfied that the error was cured by the withdrawal of the objectionable remarks and the admonition of the court, he should have objected to further proceeding with the trial or should have moved the court to discharge the jury, and, if the ruling were adverse, he should have saved an exception thereto, and that, as the record is here presented, there is no reversible error.

The judgment is affirmed.