
    116 F. 561
    ALASKA UNITED GOLD MIN. CO. v. KEATING.
    No. 742.
    Circuit Court of Appeals, Ninth Circuit.
    May 26, 1902.
    
      J. F. Malony and J. H. Cobb (John Flournoy, of counsel), for plaintiff in error.
    L. S. B. Sawyer, Crews & Hellenthal, and R. W. Jennings, for defendant in error.
    Before GILBERT, ROSS, and MORROW, Circuit Judges.
   MORROW, Circuit Judge,

after stating the facts as above, delivered the opinion of the court.

The defendant in error has interposed a motion to dismiss the writ of error on the grounds that no petition for the writ of error was filed herein in accordance with rule 11 of this court (31 C.C.A. cxlvi, 90 Fed. cxlvi), and no writ of error was allowed by any judge, as required by said rules and the rules prescribed by the supreme court of the United States. The motion was made upon the further ground that the writ of error was not under the seal of the court from which it was issued, and did not bear teste from the date of its issue.

Rule 11 of this court prescribes the practice to be followed with respect to the assignment of errors, and provides that “the plaintiff in error, or appellant, shall file writh the clerk of the court below his petition for the writ of error or appeal and assignment .of errors, which shall set out separately and particularly each error asserted and intended to be urged. No writ of error or appeal shall be allowed until such assignment of errors shall have been filed,” etc. The assignment of errors was filed by the plaintiff in error with the clerk of the court below on July 25, 1901, in which was set out the errors asserted and urged upon the court as grounds for the reversal of the judgment. Thereupon the clerk of the court issued a writ of error requiring that the record and proceedings in the case be sent to this court, and on the 2d day of August, 1901, a judge of this court approved a supersedeas bond, and signed and issued a citation requiring the defendant to appear in this court, “pursuant to a writ of error filed in the clerk’s office of the United States district court for the district of Alaska, • division No. 1, at Juneau, * * * to show cause, if any there be, why a judgment in the said writ of error mentioned should not be corrected and speedy justice done to the parties in that behalf.” The -filing of an assignment of errors in the court below, the issuance of a writ of error by the clerk of that court, the taking of a supersedeas bond, and the signing and issuance of a citation by a judge of this court, and the service of this citation upon the defendant in error, were the proceedings required by statute and by the rules and practice to bring the case into this court. The absence of a formal petition for a writ of error did not prejudice any of the substantial rights of the defendant in error, and must be treated as a defect of form rather than of substance, and the same may be said with respect to the lack of a formal allowance of a writ of error. All such defects in proceedings are fully covered and remedied by sections 954 and 1005 of the Revised Statutes (28 U.S.C.A. §§ 777, 873),'and section 11 of the act of March 3, 1891 (26 Stat. 826, 829 [28 U.S'.CA. §§ 228, 230, note] ). It is not required that a writ of error be allowed by a judge. It is enough that it is issued and served by a copy lodged with the clerk.of the court to which it is directed. Davidson v. Lanier, 4 Wall. 447, 18 L.Ed. 337; Ex parte Virginia Com’rs, 112 U.S. 177, 5 S.Ct. 421, 28 L.Ed. 691; Trust Co. v. Stockton, 18 C.C.A. 408, 72 F. 1. In Brandies v. Cochrane, 105 U.S. 262, 26 L.Ed. 989, it was held that an appeal may be perfected without an order formally allowing it, and that an appeal is in legal effect allowed when the circuit judge takes the security and signs the citation. The same rule was followed in Brown v. McConnell, 124 U.S. 489, 8 S.Ct. 559, 31 L.Ed. 495, on an appeal from the supreme court of the territory of Washington. The objection that the writ of error was not under the seal of the court from which it was issued, and did not bear teste of the day of its issuance, refers to a mistake in the writ and an omission of the seal therefrom. These defects can be corrected under section 1005 of the Revised Statutes, and the court will so order.

The plaintiff in error assigns as errors the action of the court in reopening the case, and permitting the plaintiff to introduce further evidence after both the plaintiff and defendant had announced that the case was closed; the refusal of the court at the conclusion of all the evidence to grant the defendant’s motion to instruct the jury to return a verdict for the defendant; the action of the court in permitting a witness to testify, in substance, that from his knowledge and experience in mining it was a necessary and proper precaution to be taken for the protection of the employés who were being lowered to their work down the shaft to first lower the skip empty to test the shaft, and see that the same was free from obstructions; errors in instructions given to the jury respecting the responsibility of the master for the acts of those whose services were of such a character that they represented the master; the duty of the master to provide a reasonably safe place for the employé to work in; and the absence of responsibility on the part of the master for the carelessness of a fellow servant.

The action of the court in reopening the case after both parties had indicated that it was closed was the exercise of a discretion with respect to judicial procedure in the trial of the case, and the only question for this court to determine is whether the court below exercised a sound discretion, in view of all the facts and circumstances of the case. The practice of reopening the case to take further testimony after the judge has instructed the jury as to the law of the case is a practice that should generally be condemned, if for no other reason because it is a departure from the established method of procedure, and tends to produce confusion and uncertainty in the practice. But there may be exceptional instances where the court would be justified in making this departure, if neither party is prejudiced by it and it is in the interests of substantial justice. This appears to be the case in the present instance. It is not claimed by the plaintiff in error that it has suffered any injustice or that its rights have been prejudiced in any way by the action of the court. In the absence of such a showing we cannot say, under such circumstances, that the court exercised an unsound discretion in reopening the case.

It is contended by the plaintiff in error that the refusal of the court at the close of the evidence to instruct the jury to return a verdict for the defendant involves two questions: (1) Whether the evidence established the fact that the injury to the plaintiff was caused by the negligence of a fellow servant in failing to remove the chair or bar from the shaft so as to leave the shaft unobstructed for the lowering of the skip; (2) whether the evidence established the fact that the plaintiff was guilty of contributory negligence in placing himself upon the safety bar of the skip for the descent into the shaft. With respect to the first question, there is no ground for objection in the record. The court instructed the jury that the skip chute tender was a fellow servant of the plaintiff, and that the chair being down, so as to cause said injury was the carelessness and negligence of the fellow servant, and not the carelessness or negligence of the defendant, and that the verdict of the jury should be for the defendant unless the jury should further find that an additional precaution, viz., running down the skip for a trial trip at the time of making shifts, was necessary for the safety of the men before allowing them to go thereon to their places of employment. It is evident that the objection of the plaintiff in error is directed to the last qualifying paragraph of this instruction, which will be considered hereafter.

With respect to the defense urged, that the plaintiff was guilty of contributory negligence, it is necessary to understand what constitutes contributory negligence in a case of this character. It is the want of ordinary care and prudence on the part of a person injured by the actionable negligence of another, combining and concurring with that negligence, and contributing to the injury as a proximate cause thereof, without which the injury would not have occurred. 7 Am. & Eng. Enc. Law (2d Ed.) p. 371. Assuming that the presence of an obstruction in the shaft ought to have been ascertained by the defendant before the skip on which plaintiff was riding was sent down, and that this omission was the negligence of the defendant, then it is clear that the plaintiff’s position on the skip, although it may have been dangerous, was not a proximate cause of the injury, as it did not combine or concur with the defendant’s negligence in causing the injury. In other words, if between the negligence of the master or a servant in. leaving an obstruction in a shaft or passageway that may cause an injury to another servant there intervenes the positive duty of the master to ascertain that the shaft or passageway is clear of obstructions, then the person injured cannot be charged with contributory negligence, unless his want of ordinary care was in some way connected with the negligence of the master in failing to keep such shaft or passageway clear of obstructions. These concurring and contributing causes, acting together, are not found in this case, and in this aspect of the case the plaintiff’s act, however it may be viewed, was not a proximate contributing cause of the injury. This distinction between the proximate and remote cause of an injury was recently applied to a somewhat similar state of facts in the case of Railway Co. v. Carlin, 49 C.C.A. 60S, 111 F. 777. There one of a gang of workmen engaged in repairing a bridge on the defendant’s railroad left a heavy iron hammer or sledge with which he was driving spikes lying on the bridge. It was the duty of the foreman to see that all obstructions were removed from the bridge before the passing of any train. When the train connected with the accident apr proached; the foreman was alone on the bridge near the place where the, hammer lay, but he failed to see or remove it, and it was struck by the train and thrown some distance from the track, where it struck one of the workmen, severely injuring him. The circuit court of appeals held that, conceding the workman who left the hammer on the bridge to have been negligent in so doing, his negligence was not the proximate cause of the injury, which was the negligence of the’ foreman in failing to see the hammer and remove it on the approach of the train.

But there was evidence tending to show that the plaintiff herein was using ordinary care with respect to his position on the skip. McDonald, a superintendent of another mine, who was a witness for the defendant, testified that from his experience and knowledge of machinery the proper place and the place intended for men to ride in ascending and descending the shaft was in the skip and on top of the edge of the skip; also that they could ride on the safety bar of the skip or safety bow. He said they could not ride on the springs, because they would be worn out by the men’s feet, but that it was safe enough for a man to stand on the edge of the skip and on the bar above the springs, and he could stand on the springs if he did not meet with an accident. The plaintiff testified that the skip was the customary way of going down into the shaft; that it was customary to take the whole squad at once, — as many as could get on. He was asked if there was anything that would make standing on the safety bar as they went down more dangerous than standing on the edge of the skip or standing on the skip. His answer was, “No, it was customary.” The skip was an iron bucket about 3j4 feet square at the top, 3 feet square at the bottom, and about 4 feet deep. The skip was so loaded with tools that only one of the five men going down could get inside the skip. The other four distributed themselves as best they could on the bars or bails and on the edge of the skip. This was the usual way of taking workmen down into the mine. Their safety in going down necessarily depended upon the shaft being kept clear of obstructions or in the care taken in lowering the skip slowly down the shaft. This evidence tended to establish the fact that the plaintiff, going down in the usual way, used ordinary care in getting upon the skip; and considering all the evidence in the case, and particularly the evidence tending to show as a fact that it was the duty of the defendant to keep the shaft clear of. obstructions, we think it cannot be said that the necessary legal inference to be drawn therefrom was that the plaintiff was guilty of contributory negligence. The question was therefore one for the jury. Railway Co. v. Ives, 144 U.S. 408, 417, 12 S. Ct. 679, 36 L.Ed. 485; Railroad Co. v. Powers, 149 U.S. 43, 13 S.Ct. 748, 37 L.Ed. 642; Railroad Co. v. Egeland, 163 U.S. 93, 16 S.Ct. 975, 41 L.Ed. 82.

The objection that the court permitted a witness to testify concerning the necessary and proper precaution to be taken for the protection of the workmen who were being lowered down the shaft to their places of work cannot be sustained. The objection was that the question was leading. The court very properly ruled that the question was. in the nature of a hypothetical question, and therefore necessarily in that form.

The objections to the instructions of the court to the jury may all be considered under the objection to the following instruction given: “If you find from the evidence that the shaft was properly constructed and in good repair: that the skip and machinery connected therewith was suitable and proper for the purpose of lowering men to the places in which they were to work in said mine; that the defendant had formulated proper rules, and these rules and orders had been communicated to the skip chute men, as to the manner in which the chairs were to be handled and fastened in place so that the shaft should be kept free for the ascent and descent of the skip; and you further find that the injury of the plaintiff was caused by the chair being negligently left down and across the shaft by the skip chute man, and not by his own contributory negligence,— then I charge you as a matter of law that the chair being down so as to cause said injury was the carelessness and negligence of the fellow servant, and not the carelessness or negligence of the defendant, and your verdict should be for the defendant, unless you further find that an additional precaution, viz., running down the- skip for a trial trip at the time of making shifts, was necessary for the safety of the men, before allowing them to go thereon to their place of employment.”

The evidence showed that a chair or bar had been negligently left down and across the shaft at a point about 290 feet below the surface; that the skip carrying the plaintiff came suddenly in contact with this chair or bar, and in the collision the plaintiff was injured. The court instructed the jury that the negligence in leaving this chair or bar down and across the shaft was the negligence of a fellow servant, and not the carelessness or negligence of the defendant, and that the verdict of the jury should be for the defendant. This instruction was clear, positive, and direct, and disposed of the question of liability of the defendant in this action, with one single qualification, and that was the question, did the defendant owe to the plaintiff a positive duty to use reasonable precaution to ascertain whether the shaft was clear of obstructions before lowering him down the shaft to his place of work? This question the court submitted to the jury as a question of fact to be determined from the evidence relating to the custom in the operation of mines where this precaution was taken to secure the safety of the workmen. A number of witnesses testified that such a custom did prevail in many mines, because of the danger of obstructions and displaced timbers iri the shaft caused by blasting operations. There was also the inference that the time elapsing between the coming up of the night shift and the going down of the day shift, to which the plaintiff belonged, made it specially necessary that the effect of such disturbances should be ascertained before sending workmen down the shaft. What was a reasonable precaution to be taken by the defendant to secure the safety of the plaintiff, under the circumstances of the case, was a question of fact for the jury, and justified the instructions of the court.

Finding no error in the proceedings, the judgment of the circuit court is affirmed.  