Ryan v. Inyo Cerro Gordo Mining & Power Co.

LANGDON, P. J.

This is an appeal from an order of the superior court of the state of California, in and for the county of Santa Clara, denying the motion of defendant, Cerro Gordo Mines Company, for a change of venue from the county of Santa Clara to the county of Inyo. Said motion was made while an appeal was pending from an order denying a similar motion of the present appellant based upon other grounds. The action was brought to recover damages for personal injuries alleged to have been sustained

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by plaintiff arising out of an alleged accident occurring at the mining properties of the defendant, Cerro Gordo Mines Company, in Inyo County, California, on July 22, 1916. Defendant’s motion was made upon the ground that the convenience of witnesses and the ends of justice would be promoted by such change in the place of trial. The evidence contained in the bill of exceptions consists of the complaint and answer and affidavits and counter-affidavits. The complaint alleges that at all the times mentioned therein the defendant companies were in possession of certain real property situated in the county of Inyo, state of California, which property said companies worked and operated for mining purposes; that at all times material to this action the defendants had and maintained on said property for the purpose of carrying and transporting ore from said defendants’ slag dumps to their ore bins, what is known as a jig-back, consisting of two wire cables, one inch in diameter, stretched over and laid upon supports about fifteen feet from the ground between said slag dumps and ore bins. That said wire cables are parallel and formed a track about thirty inches in width, upon and over which said defendants ran and operated a car for the purpose of carrying ore from said slag dumps to said ore bins; that said car is pulled and propelled by means of a one-half inch wire cable, one end of which is attached to said car, and the other end to the drum of a gasoline engine belonging to said defendants; that said jig-back or cable track crosses over and above the public highway running between the towns of Keeler and Cerro Gordo, in said county of Inyo, which road or highway is the only public highway between said towns, and said ore car is operated upon said track where saíne crosses said highway; that on July 22, 1916, plaintiff was riding on a burro and traveling on said public road and it was necessary for plaintiff to pass and travel over said road where said cable track or jig-back crossed said road as aforesaid; that while plaintiff was traveling over said road at the point where same was crossed by said cable track, and while said defendant John Doe was in charge of the engine which propelled the ore car, said defendants carelessly and negligently operated said engine and the drum thereof, so that the one-half inch cable which was attached to and pulled said ore ear became slack and dropped