Keast v. Santa Ysabel Gold Mining Co.

HENSHAW, J.

Plaintiffs, the heirs at law of Alfred H. Keast, sued defendant to recover damages for negligently

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causing his death. From the judgment which followed the verdict of the jury in their favor, and from the order denying its motion for a new trial, defendant appeals.

Alfred H. Keast was a miner in the .employ of defendant, and at the time of his death was at work with a companion at the bottom of a shaft. By order of the foreman a timber was sent down the shaft, to be landed at the five-hundred-foot level. While the workmen at this point were engaged in hauling this timber from the shaft onto the station the fastening became detached and the timber fell, struck Keast, and so injured him that he died two days after. To lower the timber, “dogs,” to which were attached a chain, were driven securely into it. On this chain was a ring. To the end of the cable was attached a hook, and this hook was inserted in the ring. When the timber had thus been lowered to the five-hundred-foot level its descent was stopped, and the men at that level fastened a rope to it and proceeded to drag it onto the landing. It had not been lowered quite far enough to permit free entry to the landing, and consequently, in some way,—just how is not clearly defined,—the upper end of it caught or jammed. The signal was then given to lower it further, and the signal being obeyed the hook detached itself, and the beam of wood fell down the shaft. It is undisputed that the timber fell because the hook became detached. The negligence charged against defendant was that the hook was an unsafe, insecure, and inadequate appliance. The hook was brought into court and exhibited to the jury. It was not an open hook, but had a clevis, or tongue, to prevent detaching. It was not a spring which held this clevis in place, however, but a clamp, which was liable in lowering to be knocked up and off the clevis, and which in this particular instance was so worn and loose as to be easily removable. Evidence was introduced upon the part of the plaintiffs that the hook was unsafe and improper for the use to which it was put. Upon the part of the defense the evidence was generally that it was a safe hook, “if used with ordinary care.” The fact would seem to be that in its condition it was little better adapted for the purpose than would have been an open hook, and the ordinary care required for its use was the care that would have been required in managing such an open hook. The question of the unsuitableness of the appliance was one, under