Appeal from the Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.
J. H. Morris, for Appellant.
V. S. Thomas, for Respondent.
By the Court, Norcross, J.:
This is an action for damages for personal injuries sustained by respondent while working as a miner and machine man in appellant's mine in Tonopah. From a judgment in favor of plaintiff for the sum of $1,166 and costs, and from an order denying a motion for new trial, defendant appeals.
The case was tried before the court without a jury. The complaint alleged that, while plaintiff was employed at the place and at the work to which he had been directed by the defendant, he was, without fault upon his part, precipitated by the falling of the hoist bucket, on which he had mounted from the 400-foot station of the mine shaft to the bottom thereof, causing the injuries for which judgment was demanded.
The sixth paragraph of plaintiff's complaint reads as follows:
That defendant failed in its duty to the plaintiff, its employee, in the following respects, to wit:
(a) In not providing and maintaining safe equipment, machinery, and appliances; but, on the contrary, furnishing and maintaining equipment, machinery, appliances (to wit, the engine and hoisting apparatus employed
in the sinking of the shaft from the 400 level) that were improper, unsuitable, defective, and dangerous, as defendant knew and had full opportunity and reason to know.
(b) In not warning plaintiff of the aforesaid dangers.
(c) In not interposing to prevent plaintiff from getting onto the bucket, when defendant knew that he was about to do so and that it was dangerous so to do, as the engine would not hold under the circumstances then existing; the defendant being aware thereof and having full opportunity so to interpose.
(d) In not providing employees in sufficient numbers for safety.
(e) In allowing and directing the engineer of the aforesaid engine to leave his post thereat at a time when the hoisting apparatus was likely to be used and when only the muscular strength of the engineer could prevent the engine ...