Sharpsteen v. Salt

Ward, J.: The defendant, the Livonia Salt and Mining Company, was engaged in sinking a shaft to the salt deposit in'the town of Livonia, in Livingston county, for the purpose of mining salt, in the. summer and spring of 1891. The shaft was sunk mainly through the solid rock, which was removed by blasting into fragments and being hoisted and carried away. Then the usual timbers were put in. The dimension of ■ the shaft inside of the timber was ten by twenty feet, the longest dimension running north and south. On the 9th of July, 1891, on the day-the plaintiff was injured, the shaft had [146] been sunk to the depth of 525 feet. In timbering it. the shaft was divided into three divisions, each being six by ten feet., the longest dimension extending east and west. These divisions were planned to extend from the top to the bottom of the shaft, and were separated by timbers put. through east and west about eight .'or ten inches apart-. The boards placed on the outside of the shaft against the rock were called lagging by the witnesses. The middle apartment, or- division,, of the shaft was used for a hoistway, and generally a bucket was used in which the fragments, of rock were hoisted, and by means of which lumber .and timbers were let down into the mine. Laborers were also lowered and. raised in this bucket. The northern division was used for a laddérway and air chamber. At intervals of about sixteen feet down this northern division platforms were built, in the southwest corner of which a space twenty by twenty-four inches was left open for the ladder-, way, the ladder itself being set' on the platform with the bottom about two feet out from the west wall, and the top leaning against the west wall. Each succeeding, ladder was placed in the same manner on the next platform, so that in going down a person having come to the foot of one ladder would step right around on the top rung of - the next ladder which set back of the foot of the ladder above. Four feet of the east- end of the northerly division was used as an air shaft, an aperture being left therefor, which was sheathed up after the platform was laid. ' The sheathing of the air chamber was the very last thing to he done in connection with the com-' pletion of the northerly division. The sinking of the shaft being through rock,, considerable space had to be left bejow the permanent timbering for the drilling and blasting. A heavy double platform across the whole shaft was built, about twentydive feet above the bottom- of the shaft to protect it from injury from blasts, etc., to the permanent shafting above, and. this double platform was removed and placed lower down from time to time as the work progressed, When such lowering of the double platform was. made, the platforms for'the ladders were built down to within a proper distance up. The- construction- of the lower part of the timbering of the shaft,, including platforms, was always in more or less of a dangerous condition. The.plaintifl- had. been employed by the defendant in, October,, 1890,. the shaft being then, about thirty-five; feet down, [147] and the plaintiff had been working on the shaft continuously till the 9th day of July, 1891, as digger, helper on the drill and working on the timbering. Every day that he worked he had been going up and down the shaft. At intervals the work of blasting rock in the bottom of the shaft was suspended in order that the timbering might be brought down, as the blasting and putting in the timbering near the bottom of the shaft could not go on at the same time. On the morning of July ninth the drill gang was laid off, which included the plaintiff. The plaintiff, one, Lobinsón and two others of the employees upon this work were waiting to be put to work, and Lobinsón, the shift boss or boss of the Work for the defendant, took along one Callicott and the plaintiff to work on the timbering. The plaintiff had a miner’s lamp in his hat and the others had lamps and candles. Candles were kept by the defendant in the head house, right over the shaft, and the employees took them as they needed them to use. The plaintiff, with Lobinsón and Callicott, went to the bottom of the shaft in the bucket to make an inspection, and then commenced to shift the double platform, which was taken out and put in again lower down, aboxit twenty-five feet above the bottom of the shaft. The plaintiff and Callicott then built a ladder platform, about five feet above the double platform, and then went up to plank the platform, about fifteen feet above the one they had just made It was while at xvork on this platform that the plaintiff met with the accident. The timbers at that point separating the northerly and middle divisions had been put in place. The platform had not been completed. The sheathing of the air chamber had been made down the shaft only a portion of the way, and had not been built down to this platform, so that the hole for the air chamber at the point of the accident was left open. There was a bell used in connection with the work. Lobinsón, the foreman, told the plaintiff to get out of the bucket and ring the bell for them (Lobinsón and others) while the others fixed something below. Callicott was at work on the platform where the plaintiff Was operating the bell wire at the man hole in the ladderway. Calicott told the plaintiff to step out of the way while he did some work where the plaintiff was standing. Plaintiff stepped around Calicott and fell into the hole and was severely injured. The plaintiff testified that he did not know that the hole was there, and that no one had [148] informed him of that fact. He blew out the miner’s lamp that he held at Calieott’s request as Oalieo’tt said the sihoke bothered him at his work. ' The place was véry dark. Calicott had a candle burning which created but little light upon the floor. The plaintiff admitted that had he got down With the light near the flooring of the platform he.could have discovered the hole. This he did not do, although he saw Calicott moving around the platform on his hands and knees. Although the plaintiff testified that he did not know the hole into whichHie fell was there at the time of the accident, we have reached'the conclusion from the whole evidence in the casé that from plaintiff’s knowledge of the situation he must have known, or if he did not know very slight inspection of the place would have disclosed to him the dangerous situation he was in. It was evident that he did know, but in a moment of haste and forgetfulness he neglected the precautions he should have used for his safety. This case is a very distressing one. The plaintiff is a physical wreck and incapable of earning a livelihood, and if this recovery could be justified, upon any legal principle we should sustain it. The plaintiff seeks to fix the responsibility upon the defendant by invoking the familiar principle that it is the duty of the master to furnish a safe place for his servants to work, or at least to use reasonable care to that end, and in case of a hidden danger or one of which the servant is not. advised and cannot be without experience of the situation, it is the duty of the master to give the servant, warning of such danger. Neither of. these principles apply to this case. The work in which the plaintiff was engaged was evidently hazardous. The place- where he was, working was in process of creation of construction. It was incomplete at the time of the accident. The plaintiff had full knowledge of the conditions surrounding him and of the dangers attending his employment and was called upon to exercise the care commensurate with his situation and accepted by" his employment at such a place the risks of the situation. The shaft was deep and ■ dark. The platform that had been constructed was narrow and a step in the" darkness would" precipitate the workmen into the abyss'below. .To- protect the servant the fnaster had provided him with a lamp and with candles ready at hand by mean’s of which he could exploré the mine and become [149] aware of any obscure danger. The master does not insure the safety of the servant. His contract with his servants is to exercise a reasonable care of them under all the conditions surrounding the. employment. It seems unnecessary to cite cases to sustain this view, but reference may be made to Kennedy v. Manhattan Railway Company (145 N. Y. 288); Donnelly v. Brown (43 Hun, 470) ; Kaare v. T. S. & 1. Company (139 N. Y. 369). The judgment and order should be reversed, with costs to abide event. All concurred, except Adams, J., not sitting. Judgment and order reversed and a new. trial ordered, with costs to abide the event.