Smith v. Belshaw

Appeal—Review of Evidence—Support of Verdict.—Although the appellate court will not disturb the verdict of a jury where the evidence is conflicting upon substantial matters, yet where the verdict does not have some meritorious support from the evidence, it will be set aside and disregarded.

Negligence — Employer and Contractor — Control of Work. — Where one carries on an independent employment in pursuance of a contract, by which he has entire control of the work and the manner of its performance, his employer is not liable for any negligence of which he may be guilty in the course of his employment.

Id.—Leaving Coal Mine without Support — Injury to Laborer — Negligence of Contractor — Working Min-e for Royalty — Liability of Owner. — In an action to recover damages for negligence in suffering the roof of a drift in a coal mine to remain without support, by reason whereof a portion of the roof fell upon and injured the plaintiff, who was a laborer in the mine, where it appears that at the time of the accident, and for some months prior thereto, the mine was in the exclusive possession and control of a third party, under a contract with the owner, and that under the terms of the contract the contractor employed and paid the workmen, and had entire charge of and authority over the mine, receiving a certain royalty for the coal taken from the mine, the owner is not liable for the alleged negligence.

Id. — Payment fob Labor at Store of Owner — Belief of Miners as to Employer — Terms of Contract. —The fact that the miners were paid their wages at the store of the owner of the mine, where they had been paid prior to his contract with the party in possession, and that some of the miners thought they were working for the owner, is not sufficient to defeat express and uncontradicted testimony as to the terms of the contract and the labor performed under it. What the miners thought as to who was their employer is immaterial.

Id. — Gist of Action — Contract — Tort — Relations of Parties — Ostensible Agency — Notice to Miners as to Control of Mine. — Such action is not an action upon contract, based upon ostensible agency, but is an action in tort, and must rest upon the actual facts and the actual relations existing between the parties; and the owner of the mine was not bound to give any notice to the miners that he bad given up the control of the mine, in order to escape liability for the negligence of the party working the mine under a contract with him.

Id. — Accident in Old Drift — Possession and Management of Contracts. — The fact that the accident occurred in an old drift that was used simply for the purposes of egress and ingress to that portion of the mine which was being worked, would not render the owner of the mine liable, if the entire mine was out of his possession, and the party in possession had the same control, possession, and management of the drift as he had over the other portions, and the drift had not been negligently left by the owner in an unsafe condition when the contractor assumed control.