Stoll v. Daly Mining Co.

57 P. 295, 19 Utah 271, 1899 Utah LEXIS 93

• Court: Utah Supreme Court
• Decided: April 25, 1899
• Status: Published

Opinion

Me Oarty, District Judge,

after stating the facts, delivered the opinion of the court:

We deem it unnecessary to enter into a discussion of the question raised by respondent’s motion to dismiss the appeal, as to whether or not a judgment entered on a verdict is final, while a motion for a new trial, made within the time allowed by law, is pending and undisposed of. In the case of Watson v. Mayberry, 15 Utah, 265, Mr. Chief Justice Zane, speaking for tljis court, said: “A judgment terminating the litigation between the parties in the court rendering it is final. The litigation is not terminated while a motion for a new trial, made within the time given by law, may be lawfully decided. Until the order granting or overruling the motion is made, it can not be known that the judgment is final. If the motion is allowed, the litigation may continue. If it is overruled, the litigation is terminated and the judgment then becomes final. ’ ’ This rule is again reaffirmed in the case of Bear River v. Hanley, 15 id., 506. On the authority of these two cases, which we think correctly state the law, the motion to dismiss the appeal is overruled.

As stated by counsel for appellant in their brief, the questions for the jury were :

1. “Was the accident caused through the negligence of Adamson ? And we might add, or did his negligence contribute directly thereto % ”

2. “Was Adamson at the time of the accident an incompetent engineer ? ”

3. ‘ ‘ Did defendant know of Adamson being incompetent, or would it have known it by ordinary care % ” and,

4. “Was plaintiff injured, and if so, the extent of his injuries ? ”

The jury in arriving at their verdict must necessarily have found for the plaintiff on each of these issues. . And as there is legal evidence, as shown by the record, to support such findings, this court is powerless to interfere with the action of the jury in its determination of these questions, even though we might be of the opinion that the weight of the evidence is against such findings. The facts in this case are substantially the same as those in the case of Handley v. Daly Mining Company, 15 Utah, 176, both actions having been brought to recover for personal injuries resulting from the same accident. The evidence for the plaintiff in support of the foregoing issues is no less conclusive than it was in Handley v. Daly Mining Co., supra. This court, in reviewing that case held, and we think correctly, that the court erred in taking it from the jury and granting a non-suit.

Defendant assigns as error the admitting of evidence, over its objections, tending to prove that.Adamson was an incompetent engineer when he was first employed by defendant, and put to work, running the engine seven years prior to the accident; and that it was error to admit evidence of specific acts of the engineer in his management of the engine and cages tending to prove incompetency, some of which happened long before the accident occurred and some just preceding it. Also that the court erred in admitting evidence that Adamson’s general reputation was that of an incompetent engineer.

It was the duty of the defendant to use ordinary and reasonable care in the selection of its engineer. Not only was it the duty of defendant to use due care in the selection of a careful and competent engineer, but it was equally its duty to use ordinary care and diligence in the retention of such engineer. And if the defendant failed in the latter requirement, and plaintiff, without fault or negligence on his part was injured through the negligent acts of the engineer, defendant is liable.

The plaintiff, mainly relying for a recovery upon the negligence of the defendant in knowingly retaining in its employment an incompetent engineer through whose negligence he claims to have received the alleged injuries, evidence that tended to show that Adamson was incompetent seven years before the accident occurred, taken in connection with the proof of a series of acts of negligence tending to show incompetency and extending over a long period of time since his employment and while in the service of the defendant, was material for the purpose of showing that defendant knew, or by ordinary diligence would have known that he was incompetent at the time the accident occurred. McCharles v. Mining Co., 10 Utah, 470; Railroad Co. v. Baugh, 149 U. S., 369.

“ It is incumbent upon a party charging negligence in this respect to show it by proper evidence. This may be done by showing specific acts of incompetency, and bringing them home to the knowledge of the master or company, or by showing them to be of such a nature, character, and frequency that the master in the exercise of due care might have had them brought to his notice.” Bailey Mast. Liab., p. 55 F. W. & Co. v. Ruby, 38 Ind., 294; Mich. Cent. Ry. Co. v. Gilbert, 46 Mich., 179; Houston & F. Ry. Co. v. Patton, Tex. Sup., 9 S. W., 175.

Evidence of one casual act of negligence or omission of duty on Adamson’s part, standing alone, would be of little or no value to prove incompetency irrespective of its remoteness or proximity in point of time to the accident. The general rule is that a servant’s qualifications, fitness, ability, and disposition to perforin the duties required of him in his employment is not determined by one act, but by a series of acts. Baulic v. R. R. Co., 59 N. Y., 365; McKinney on Fellow Servants, p. 204; Springville Coal Co. v. Patting, 86 Fed., 433.

This rule, however, has its exceptions. A single act of negligence may be committed under some circumstances, and in such a manner, as to show, without further proof, the utter incompetency of the servant for the particular service in which he is engaged, as when the act is shown to be intentional, wanton, or malicious, or is of such a flagrant and unusual character that it can only be accounted for on the theory of incompetency.

Appellant further contends that it was error to admit evidence over its objections, showing that Adamson was careless in his management of the engine and cages, and that his reputation was that of a careless engineer, for the reason that the negligence alleged in the complaint and relied upon, is that Adamson was an incompetent engineer,' and nothing is said as to his being a careless engineer. It must be conceded that a servant who frequently makes mistakes in his work and is habitually careless and fails to properly attend to the duties of the service in which he is employed, to such an extent that the risks and hazards of the employment are greatly increased thereby, is not a competent man for the work. And any evidence that tended to show that Adamson was this kind of a man was proper.

In Coppins v. Railroad, 122 N. Y., 557, the rule is stated as follows: “ A competent man is a reliable man; one who may be relied upon to execute the rules of the master, unless prevented by causes beyond his control. Hence incompetency exists not alone in physical or mental ability, but in the disposition to perform duties. If be habitually neglects his duties, he becomes unreliable; and although he may be physically and mentally able to do'well all that is required of him, his disposition toward his work and toward the general safety of the work of his employer and to his fellow servants makes him an incompetent man. ”

Testimony showing that Adamson’s general reputation was that of a careless engineer was proper, as it tended to prove, as above stated, that defendant knew, or by the exercise of due care would have known, that he was habitually careless. And it was for the jury to determine from this testimony, in connection with all other testimony and circumstances in the case, as to whether or not Adamson was incompetent and defendant by reasonable care on its part would have known of such incompetency. Norfolk & Wes. R. Co. v. Hoover, 25 L. R. A. (Md), 710 and cases cited in note; Mich. Cent. R. Co. v. Gilbert, 46 Mich., 176.

A witness for plaintiff was permitted to testify, as follows, in regard to Adamson being a careless man:

Q. £ ‘ Do you know of your own knowledge as to whether or not he was a careless man.” A. “He was careless.”

Another witness testified as follows:

Q. “Did you have an opportunity to observe what his attainments were in running the hoisting engine, when he was put over them on the Daly ? ”

A. “Well, I really didn’t think the man was competent, for the reason that he didn’t have the experience.”

Counsel for the appellant objected to this testimony on the ground that it was incompetent, as it gave the opinions and conclusions of the witness, and not a statement of facts. The objections were overruled, and exceptions duly taken.

This testimony should have been excluded. The alleged incompetency and carelessness of Adamson being issues in tbe case, they were questions for the jury to determine. It was error to permit the witnesses, over appellant’s objections, to state their conclusions and give their opinions on these issues.

‘ ‘ The opinion of witnesses on the substance of an issue should never be resorted to, except when the. subject is beyond the knowledge and experience of ordinary men.” Walter v. Railroad Co., 40 Mo. App., 544; King v. Railroad Co., 11 S. W., 563; Sonnefield v. Mayton, (Tex.), 39 S. W., 682; Duer. Allen et al., 64 N. W., 682; Bryant v. Gillidan, 39 Mo., 458; McKean v. Railroad Co., 55 Iowa, 192.

One of the plaintiff’s witnesses was permitted over defendant’s objections to testify to the contents of printed rules containing instructions for the giving of signals to the engineer by the station tenders. The rules also directed the engineer when to raise the cages, when and to what level to lower them in answer to signals. The admission of this testimony was error. It was not shown that a demand had been made or notice served on defendant to produce the printed rules, or that any effort was made whatever on the part of plaintiff to procure them, and there is nothing in the record to show that they could not have been produced at the trial. It is an established and well recognized rule of law, that before parol testimony can be given of the contents of a writing it must be first shown that the writing itself can not be produced, or its absence satisfactorily accounted for. 1 Greenleaf on Evidence, Sec. 90; 1 Jones on Evidence, Sec. 200; Georgia Pac. Ry. Co. v. Prepst (Ga.), 7 So. Rep., 635; Railroad Co. v. McMullen (Ind.), 20 N. E., 287; Price v. Railroad Co. (S. C.), 17 S. E., 732; Mo. Pac. Ry. v. Lamothe (Tex.), 13 S. W., 194.

The record shows that plaintiff had been at work for defendant in its mine for ten years prior to the accident in question, and he was permitted to testify as follows in regard to injuries he had received prior to the accident in controversy: Q. “ Had you ever had any accident happen to you before this? A. Yes, sir. Q. How long before this ? A. About five months before this I got blasted and lost one eye entirely, and almost the sight of the other eye. Q. Had you suffered any accident before this ? A. I got blasted before that, but did n’t get hurt much. After the last accident, where I lost the eyesight of one eye, I didn’t go to work again for some time.” To each of the foregoing questions, counsel for defendant objected on the ground that it was' immaterial and irrelevant. The objections were overruled and exceptions taken. The ruling of the court is now assigned as error. The objections to this testimony should have been sustained, as it was inadmissible for any purpose. The accidents to which it referred had no connection whatever with the one in controversy, and were accidents for which Adamson was in no way responsible. Such testimony tends to prejudice the jury against the defendant, and to unduly influence them and excite their sympathy in favor of the plaintiff. Being collateral and foreign to the case, it also had a tendency to confuse, mislead, aud draw the minds of the jury from the real issues in the case. Snowden v. P. V. Goal Co., 16 Utah, 336.

The court charged the jury: “That if you find, from a preponderance of the evidence, at the time of the disaster, the plaintiff was in the employ of the defendant company as a miner, engaged in the usual duties of a miner, and that while so employed, and in the line of his duty, he received injuries resulting from the negligence or incompetency of the engineer Adamson, who was in charge of the engine and machinery which lifted the ore from the mine, lowered tbe employees into tbe mine, and lifted them out, then, as a matter of law, tbe plaintiff and tbe said engineer Adamson were not fellow servants engaged in the same grade or line of service, tbe plaintiff would be entitled to recover.”

This accident occurred before the enactment in this State of. tbe fellow-servant law of 1896, therefore the relationship of tbe plaintiff and Adamson as laborers in this mine is to be determined by the common law rule. And unless changed or modified by statute, the rule is well settled that an engineer of a mine whose duty it is to lower men to their work in the mine, lift them out, and take up the material extracted by the miners, is a fellow servant of the miners. Coal Co. v. Reed, 3 Macq., 295: Spring Valley Coal Co., v. Patting, 86 Fed., 433; Trewatha v. Buchanan, etc., Coal Co., 96 Cal., 494; Buckley v. Gould, etc., Co., 14 Fed., 833; Woods v. Coal Co., 121 Mass., 252; Philadelphia, etc., Works v. Davis, 4 Atl., 513; McCharles v. Mining Co., 10 Utah, 470.

We refrain from expressing an opinion as to what effect, if any, the fellow-servant act of 1896, above referred to, would have on the foregoing rule if applied to the facts in this case. The construction of that statute is not involved in any way in this action. Plaintiff and Adam-son being fellow servants at the time of the accident,' in order to entitle the plaintiff to recover, it was necessary for him to prove by a preponderance of the evidence that Adamson was an incompetent engineer, and that the defendant knew, or by due diligence ought to have known, of such incompetency. But if the rule were as stated in the foregoing instruction, the plaintiff would be relieved from the burden of proving the foregoing facts, and all that would be necessary for him to prove in order to recover would be that the accident was the result of Adamson’s negligence. Hence the instruction was erroneous, and the giving of it was error

The court instructed the jury on the measure of damages, as follows: “If you should believe from the evidence that the plaintiff ought to recover, you should then assess in dollars and cents such damages as he actually sustained. In assessing the damage, you should take into consideration the age of the plaintiff, his physical condition, his capacity to earn money, if such facts have been shown by the evidence, the nature of the injuries, if the evidence shows such, and from all the evidence in the case, give to the plaintiff such compensatory damages as you in your conscientious judgment think he ought to have.”

The defendant excepted to this instruction, and now assigns the giving of it as error. The record shows that plaintiff, about five months before the accident in controversy, was injured in this mine by a blast, whereby he lost the sight of one eye entirely, and the sight of the other eye was very much impaired. It must be conceded that the injuries received by the plaintiff in this former accident greatly reduced his physical ability and lessened his capacity to earn money, and were injuries to which the accident upon which this action is brought in no way contributed. Therefore the court in its instructions should have limited the right of plaintiff to recover to the injuries received in the accident alleged in his complaint, and having failed to do so, the giving of the foregoing instruction was error.

Defendant has assigned numerous other errors, but we deem it unnecessary to consider them.

The judgment appealed from is reversed, with directions to the trial court to grant a new trial.

Baktch, C. J., and Baskin, J., concur.