The record-union., 1891-12-17
NON-LIABILITT OF EMPLOYERS.
The Supreme Court Renders an I'm
portant Decision.
1t Holds that Mining Company was
Not Responsible for the Negli-
gence Of an EmpIoye.

The Supreme Courts decision in the
case of Samuel Trewatha vs. The Bu-
chanan Gold Mining and Milling Com
pany (appellant) was filed yesterday in
This city. The case was appealed from
Tuolumne County, and the question in
yolved was as to whether or not cor
poration is liable for damages for in
juries to an employe through the care
less of a fellow-e -employe.
Trewatha brought this action to re-
cover damages for injuries received by
him while he was employed in the mine
Of the Buchanan Company. The COM
plant alleged that in June, 1889, he was
working in the mine, and James Dona-
hue was the engineer who operated the
engine which lowered and hoisted the
tackle in the main shaft. Trewatha also
claimed that Donahue was incompetent,
and did not have ordinary skill as an en-
gineer, and that the company was aware
of this fact, and, moreover. did not fur
nish the engineer the necessary appliances
and means with which to safely operate
5he engine and hoisting works.
In June, 1889, while Donahue was en-
gineer, Trewatha was working in the
sion to go up to the surface in obedience
70 the company's directions. He got into
The bucket and the engineer proceeded to
hoist. The bucket was carried up with
such speed and irregularity that Ire
watha was thrown with great violence
against and over the sheaye, and was in
jured.
The answer of the company denied al
of the material averments, and alleged
that any injuries sustained by Trewatha
We're caused by his own negligence.
The case was tried before a jury and a
verdict returned in favor of the plaintiff
for 81, 1000 damages. The company moved
Tor 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
an appeal was then taken from the judg-
ment and order.
In rendering its decision the Supreme
court says: "It appears from the evil
dence that the hosting engine was on the
surface of the ground and about forty or
nifty feet from the mouth of the shaft.
The hotsting rope, or cable, was fastened
TO drum which was revolved by the en-
gine and ran thence over the sheave or pull
ley, to and into the shaft. The sheave was
about thirty feet above the mouth of the
shaft, and the bucket was attached to the
end of the rope, and by it let down into
and drawn up from the mine. At the
surface of the ground was a platform,
where men riding up and down get out OF
or into the bucket, and six or seven feet
above the surface was another platform,
where the rock and dirt was brought up
and dumped. The methods Of working
the engine were simpleand easily learned,
and Donahue had been working it as au
engineer on the night shift since October,
1883.
''In the mine were five levels, from
which drifts ran out, and the bucket was
used TO hoist from the different levels
rock and waste and the laborers employed
there. Extending up through the shaft
from the lower level was a cord which
was attached to bell hung near the en-
gine. BY pulling this cord the bell was
rung and certain known signals given to
hoist, or stop, or lower the bucket and
also to indicate whether the load to be
hoisted was man or a rock. The signal
from the 200-foOt level to hoist man was
three bells and after a little interval
'ourth one. About the engine and plat
orm lights were left burning at night to
enable the engineer to see the machinery
md watch all the movements.
'Trewatha was at work at the 200-foot
level of the mine, on the night shift and
a little after II o. clock had occasion to go
10 the surface. The bucket was going
down the shaft, and was stopped at the
20O-foot level. Thereupon the plaintiff
got into the bucket, and, as he says, gave
The proper signal to hoist him. The
bucket started up. and for about forty
5eet rose slowly. 1t then began to go fast,
and Trewatha tried to reach out his hand
and catch the cord to signal the engineer
TO stop it; but whether or not he succeed
ed in doing so he does not know. 1t con-
tinued to rise rapidly, and instead of
stopping at one of the platforms was
hurled up against the Sheave and broken
loose. The plaintiff was thrown down
and badly injured.
The engineer testified that he got the
signal that he should hoist anything but
a man. He had no idea that Trewatha
was in the bucket, SO he hoisted rapidly,
aud did not stop the bucket until it ran
into the sheave.'
The Supreme Court here quotes Section
1870 of the Civil Code, and adds: THE
engineer was a fellow-servant with the
plaintiff, employed by the same en-
ployer in the same general business, and
the evidence wholly fails to show that
there was any neglect to use ordinary
care in his selection. $ 1t follows,
in our opinion, that the plaintiff was not
entitled to recover on the ground that his
injuries were caused by the negligence of
the engineer. Gases cited.)
1--WE do not think that the verdict and
Judgment can be sustained, even if it be
admitted that the appliances complained
of were as defective as it is claimed they
were. The immediate and pIoximate
cause of the injuries sustained by the
plaintiff were very clearly shown to have
been the negligence of his co-employe :;
and this, as we understand it, is in sub
stance the averment of the complaint.
Nothing but carelessness can account for
the fact that the engineer allowed the
bucket to be hurled against the sheave-
twenty-three feet above the upper platform
whether he supposed he was hoisting q
man or something else. But the rule is
that where the promoting cause of the
injury is the negligence of a fellow
servant no recovery can be had, even
though the machinery or appliances be
defective.
I'VE advise that the judgment and or
der be reversed and the cause remanded. :"