Trewatha v. Buchanan Gold Mining & Milling Co.

The Court.— After full consideration of this cause in Bank, we are satisfied with the conclusion reached in Department Two, and with the opinion prepared in Department by Commissioner Belcher. For the reasons given in that opinion, the judgment and order appealed from are reversed, and the cause remanded.

The following is the opinion above referred to, rendered in Department Two on the 16th of December, 1891:—

Belcher, C. — The plaintiff brought this action to recover damages for injuries received by him while he was employed in defendant’s mine, known as the Buchanan Mine, in Tuolumne County. It is alleged in the complaint that, on the third day of June, 1889, the defendant was working its mine, and one James E. Donahue was the engineer employed by the defendant, and who at that time operated for the defendant its engine and hoisting-tackle used upon and in connection with the main shaft of the mine to hoist the rock and débris therefrom, and also to raise and lower the miners and other workmen working at the various levels connected with the main shaft; “ that at said time said Donahue was incompetent, negligent, and destitute of ordinary skill as an engineer, and the defendant, at such time, and for a long time prior thereto, knew ” such to be the fact; “that the defendant, on the said third day of June, 1889, was guilty of further carelessness and negligence, in that it did willfully and knowingly neglect and fail [496]to furnish said engineer with the necessary and proper appliances and means with which to properly and safely operate said engine and hoisting-works, and defendant at said time knew that said engineer was not supplied with the necessary and proper appliances,” etc.; that on the third day of June, 1889, while Donahue was so acting as engineer, plaintiff was in the employment of defendant, and was working in what is known as the “ two-hundred-foot level,” connected with the main shaft of the mine, and having occasion to go up to the surface of the mine, in obedience to defendant’s directions, and after having given to the engineer due notice thereof, he “got into the bucket connected with the said hoisting-tackle, whereupon said engineer, by means of said imperfect and unsafe appliances made use of by said defendant in connection with and for the purpose of operating said engine and hoisting-tackle, proceeded to hoist plaintiff from said two-hundred-foot level to the surface; and the said Donahue, engineer as aforesaid, negligently, carelessly, and wantonly, did hoist said plaintiff from said two-hundred-foot level with such wrongful, unlawful, and dangerous speed that the bucket in which plaintiff had placed himself as aforesaid was thrown with great violence against and over the sheave,” whereby plaintiff was greatly injured, etc. The answer denied all the material averments of the complaint, and alleged that any injuries sustained by plaintiff were caused by his own negligence. The case was tried before a jury, and a verdict returned in favor of the plaintiff for four thousand dollars damages. The defendant moved for a new trial, on the ground that the verdict was not justified by the evidence, and that errors in law were committed by the court. The motion was denied, and this appeal was then taken from the judgment and order.