Fergus County argus. [volume] (Lewistown, Mont.) 1886-1946, 1904-07-13
ADAMS CANNOT
GET DAMAGES
Supreme Court Upholds Decision OIL
Judge Leslie in Case Of Adams
Against New Year Company.
HE FAILED TO MAKE PROOF
Issue Of contributory Negligence Of
EmpIoye Was Not Determined
by the Supreme Court.
Helena Record July 1O.A

ANafO" eNaNohl ubNAiiut ulu uOl
enter into a decision announced by
the supreme court in passing upon a
personal injury case that came to
the court from the district court of
Cascade county, although many of the
elements of that principle in law were
presented in the case. The failure of
the plaintiff to make out a case of
negligence on the part of the corpor-
alton sued prompted the court to sus.
tain the non-suit granted by the low
er court.
The case was one in which E. A..
Shaw, administrator of the estate of
Joseph l.. Adams, sought to recover
damages in the sun of 100000 from
the New Year Gold Mines company of
Fergus county, for the death of Adj
ans, which resulted from injuries sus.
tanned in the explosion of a shot in
the Old Bach mine, September %,
1900.
statement OF the case.
The evidence disclosed that Rob.
erts and Lacourcier, two miners work.
ing or the day shift in the Old Bach
mine, drilled and loaded two holes
for blasting in the forenoon near the
bottom of the tunnel at its breast.
Foreman Winston said the holes need
not be fired then. because the result.
ing waste would be mixed with ore
that had been stopped. The day shift
went off work without firing the shots.
Adams came to work in theh evening,
and when he began drilling in the
bottom of the tunnel an explosion re.
suited. He was seriously injured, and
subsequently died before his suit for
damages came on for trial. His ad.
ministrator prosecuted the suit, but
Judge Leslie granted a non-suit. Shaw
appealed.
In affirming the ruling of Judge
Leslie the supreme court, in an opin-
ion prepared by Commissioner Clay.
berg. addresses itself to the propo-
sition that it was incumbent upon the
plaintiff to make out a case. The
court finds the evidence largely cir.
cumstantial, and the direct and prox-
innate cause of the accident a matter
of inference. 1t says that it does not
declare that a plaintiff can not make
out a case of actual negligence on
circumstantial evidence, but such evil
dence must tend directly to establish
the cause of action and not some the.
DRY inconsistent Herewith.
u. Theory of Accident.
"In this case the accident is claim
ed to have occurred from an unex.
ploded charge" declares the court.
This is possible. 1t is equally pos
sible that it occurred from an unex.
ploded piece of dynamite which had
become dislodged from a loaded hole
by other blasts, and intermingled with
the waste, which 1t was Adams duty
to clean up. or from the negligence
of Adams himself. Many other the
cries present themselves which are
equally deducible from the facts dis
closed in the record"
The court says that while as a rule
the master Is bound to use diligence
in providing a safe place for a SER
want to work, such rule would not ap-
ply where the plaintiff and his fellow
servants are creating the place of
work. The court expresses the opin.
ion the evidence did not show negli.
gence on the defendants part.
Negligence is a breach of duty"
continues the court. The duty of
defendant was to exercise due dill.
gence in furnishing and maintaining
a reasonably safe place In which Ad.
ans was to work. There Is evidence
In the record tending to show the
tunnel was an unsafe place of itself
and 1t Is only claimed 1t became un.
safe by reason of a blast left by
workmen on the preceding shift, un.
expledd and undischarged."
The court then discusses two the.
cries advanced by the plaintiff of
negligence on the part of the mining
company. One sought to make the
company liable because of the order
given by Foreman Winston not to
fire the holes, but the court says
there was no negligence proven
against either Winston or the com
pany. The second theory that the
defendant knew of the unexploded
hole is held equally u~ntenable.
l The court says ii there existed a
duty to notify Adams of the unex'
] ploded hole 1t was the duty OF a fel'
! low servant, and II not complied with
| 1t was the negligence OF a fellow ser
I, want.
From Unforeseen Cause.
) In concluding the court says: I'VE
4 have not considered the question
whether plaintiff assumed the risk OF
5 danger from unexploded blasts or as
to whether Winston was a fellow ser
want or a vice principal, as neither is
E necessary to this decision.
; The unfortunate accident disclos
: ed by the record arouses the sympa
thy Of all. but in view of all the cir
cumstances, as they appear by the
: evidence, the calamity seems to have
been a casualty from a cause unfor
. seen and not within reasonable ap
! ~prehension' Quoting a d%ecision) 'ant
no more sympathy for the unfortunate
victims of an accident justiies any
departure from settled rules Of proc
resting upon all plaintiffs
I I'VE therefore advise that the judg
ment appealed from be affirmed"
When bilious take Chamberlain
Stomach and Liver Tablets. For sail
: