Jennings

This action was brought by the plaintiff in error under section 353 of the Alaska Code of Civil Procedure to recover damages for the death of plaintiff’s intestate caused by - the alleged negligence of the defendant in error in failing to maintain in a reasonably safe condition the machinery and other appliances used in operating a hoisting apparatus in defendant’s mining shaft-. The case was tried before a jury. At the conclusion of the testimony defendant’s counsel moved the court to instruct the jury to return a verdict for the defendant, for the reason that it was not shown that the defendant had been guilty of negligence with respect to any of the matters charged in the complaint. The court instructed the jury to return a verdict in favor of the defendant, but mainly upon the ground that there was a failure of proof that any one had suffered damage or pecuniary loss by reason of the death of plaintiff’s intestate.

The case of Alaska Treadwell Gold Mining Co. v. Cheney (C.C.A.) 162 F. 593 , involved the same accident as in this case, and we had before us in that case substantially the same evidence as in this case. We held there that the evidence of negligence on- the part of…