El Nuevo mexicano., 1916-02-24

In twelve opinions landed doTn to-
cay BY the state supreme court, there
are sit which reverse and fiYe which
affirm the lower courts. and one which
aiirms as 70 certain appellants and
reyerses as to al estate. Four Of
The opinions are written by District
Judge vi. C. MecheEs. OF 5oe0rro. sit
ting on the supreme bench in the abb
scnce Of Mr. Justic r. II. Hanna. In
those opinions Chief Justice G. J. Rob
crts and MT. Justice Frank w. Par
ker, concur lii fact,NaIl Of the npin-
ions are signed BY three judges. there
Icing no dissenting opinion. Chief
Justice Roberts wrote seven OF the
crinions
First in interest, perhaps. is the
case No, 1910, Matt Melkusch, appel
Isn't IVA. The Victor American Fuel CO.,
appellee. Summed up. the courts
opinion holds that an employe does
lot assume risk when the statute is
inlated by his employer or master.
The complaint alleged that appel
iant on April 26, 1913, was engaged In
service Of appellee as q coal miner;
that it was the duty Of the company
TO furnish the appellant with a safe
and suitable place in which TO work
and provide him with suitable tools,
latop and equipment. The plaintiff in
the lower court here appellant, is al.
legged to have requested timber to
support roof in the company's mine
and the company failed TO grant re-
quest. There was an accident on
April 26. 1918. the roof caying in,
crushing appellants right arm, rel
sulting in an amputation. The de.
iendant below, BY way Of answer, de-
ried negligence and pleaded assump
ton Of risk by plaintiff, c~ontributory
negligence and the fellow servant doc
trine. The case went to trial and de-
PENDANT here appellee, moved for an
instructed verdict setting forth If
teen grounds. Three Of these are cit
I'd IN the opinion Of the state supreme
court. The motion was sustained by
The lower court apparently on the
theory that the evidence disclosed
shat plaintiff was guilty of the viola
ton OF a statute and that such viola
lion Of law contributed p~roximately
to his injuries.
The opinion Of the supreme court is
by Chief Justice Roberts and covers
eleven typewriter pages. The sylla
bus Is as follows:
A. A miner, employed ina coal
mine. does not assume the risk Of in
tury from the masters violation Of a
statutory duty to provide an ample
supply of timbers and to cause the
same TO be delivered on the pit car.
1T the request Of the miners, as near
as practicable to the place where the
same are to be used. as required by
sub-See. II, Sec. 1907. code 1915.
2 Par 6 of Sub-Seo.. SIS Of Sec. 350S,
code 1915 which mades it a penal Of
tense for any coal miner to work on
remain IN an unsafe OF dangerous
place in a coal mine. knowing the
same to be such, except for the pur,
pose Of remedying such condition,
construed. Held, that this section
does not prohibit a miner from re,
manning or working IN a room where
2 portion OF the roof requires timbers
and supports, in order to render it
safe, SO long as the place where he is
working is a safe place, and does not
require timbers or supports. That.
under this section, he is not guilty so
long as he remains from beneath the
particular portion of the roof which
is unsafe and dangerous.
3. Contributory negligence, being
an affirmative DEFENSE, the burden OIL
establishing it rests upon the defend
ant.
A. Evidence reviewed. Held. that
under the plaintiffs evidence he was
entitled to go to the jury upon the
question as to whether he was work
ing in a dangerous or unsafe place.
knowing the same to be such.
.. Where men Of reasonable minds
might draw different conclusions from
the evidence, the case is for the jury
and this is so. although the evidence
IS un~contradicted.
6. A servant who is suddenly ex-
posed to great and imminent danger
is not expected to act with that de-
gree Of prudence which would other
wise be obligatory.
In concluding his opinion. Chief
Jnstice Roberts says: Under these
facts clearly he had a right to have
the case go to the jury. and the trial
court erred IN instructing a verdict
for the defendant For the reasons
stated the cause shall be reversed
with directions to the trial court toi
award appellant a new trial.
a. r. Hannett and George S. Kloch
were attorneys for the appellant: Col.
X =. Twitchen, Alfred Ruiz and Yea
d and Give. for the appellee.
more. pick up add 4r,qpssi
chaves County Case.
This case, "a. A.. Strickland. appel.
lee. vs.. J. w. Johnson and John c.
Johnson. appellants. (Chaves county,
was over a transfer Of farms. Appel
liant and appellee, says The statement
of facts. in the summer OF 1912,
agreed to exchange farms; appellee's
farm was located in Illinois and the
other was near Roswell Deeds we're
exchanged July /. On August 81. ap-
pellant arrived in Chaves county and