Kelley v. Cable Co.

Liddell, J. —A full statement of the pleadings and issues involved in this litigation will be found in a former opinion of this court, reported in 7 Mont. 70. We there reversed the judgment in favor of the defendant on the ground of conflicting and inconsistent instructions, and'remanded the cause for a new trial. The second trial has resulted in a verdict in the plaintiff’s favor for ten thousand dollars, which on a motion for a new trial was set aside by the judge a quo, and an appeal from that order brings the case before us for review. The defendant relied upon two grounds for a reversal of the verdict, either of which if good will sustain the order appealed from; first, that the verdict was contrary to the law and the evidence; and second, that the court gave the jury certain erroneous instructions; but in passing upon this motion, we are not informed upon what specification the court made its order setting aside the verdict. — 446 — After carefully considering the instructions given and refused, we are unable to agree with defendant’s counsel that the former misstated the law which in the previous opinion of the court governed the case, or that the latter was applicable. But under the view which we have taken, it will be unnecessary to review any other point than that the verdict was contrary to the law and the evidence. There is no dispute as to the principle of law upon which the case must be decided. The plaintiff bases his right to recover upon the sole ground that he had been injured by what is known in miner’s parlance as a “ missed charge,” which was in the “ drift ” or “ cross-cut ” where he was sent to work by the foreman of the mine, whose duty it was under the instructions of the company to see that all blasts had been exploded, and that this duty was neglected. By way of defense the company contends that there was no negligence on the part of its agent, who was a skillful person, and exercised all due care and prudence in the performance of his duties, but that the injury suffered by the plaintiff was the result of an unforeseen and unavoidable accident. The evidence is conclusive that while it was not the duty of the foreman in charge of the mine to be present and do the blasting, yet under the instructions of the corporation it devolved upon him to examine after the blasting had been done, and to see that the charge in every hole had exploded. The same duty is, however, under the general rules of mining, also that of the persons engaged in doing the blasting. During the day two men, McBride and Bowman, were drilling the holes and doing the blasting in the drift or cross-cut in which the plaintiff that night received his injuries, and therefore their testimony must have great weight in arriving at the facts in the case. McBride testified in such a way as to leave nothing to conjecture. He drilled the holes in the lower part of the face of the drift, loaded them, six in number, with two or three sticks of Ho. 1 Vulcan powder, a highly explosive compound of nitro-glycerine, fired them off, counted the discharges, went in after the smoke cleared away, and satisfied himself that the blasts in the lower part of the drift had all exploded. The testimony of Bowman, who drilled the holes in the upper part of the drift, is to the same effect. After firing the blasts, he went into the drift or cross-cut, — 447 — and made a personal examination, even digging down into the loose rock to satisfy himself that a certain cartridge had not missed fire. He corroborates McBride in the statement that he made the examination as to his own blasts, and states emphatically that the foreman went in with him and McBride, and examined to see if the shots had all exploded, and that there were no shots put in that day except where he and McBride worked. The testimony of Showers, the foreman, is fully corroborated by that of the two witnesses just referred to. In it he distinctly states that he went into the cross-cut and examined to see if the shots had all gone off, in that way verifying the count which he made of the reports, and his object in so doing was to ascertain that very fact. The plaintiff describes the place of the accident as about three feet from the left-hand corner of the drift as you are looking in, and about eight or ten inches from the side of the wall, and the rock or boulder about which he was using his pick was eight or ten inches above the bottom; and at the time of the explosion there was about a car load of dirt and rock in the cross-cut. His description of the precise point at which the explosion occurred is a little vague. But whether he intends to say it was in the side of the wall or the bottom of the drift, the testimony is utterly irreconcilable with that of the blasters and foreman as to the locality of the blasts. When the plaintiff was taken from the mine after the accident, in reply to questions as to how it occurred, he stated that he was stooping over using his pick in some loose rock, when he struck a piece of giant powder, which caused the flash and explosion. That he made this statement to Savery, Showers, and Judge Hubbard on the night of his injuries is not even denied or contradicted, and under the circumstances this is entitled to consideration, as showing what he considered the cause of his injuries at a time when he was unsuspicious, and anterior to the institution of this suit. During the trial there was considerable expert testimony introduced to show the force of the explosives used in doing the blasting, but in the main it all agreed that if the plaintiff had received the “ burden ” intended to be thrown by the blast it would have been fatal to him; while it was stoutly maintained by others that a “ missed hole,” charged and loaded as described by — 448 — the men who did the blasting and exploding, as testified by the plaintiff, would have produced death instantaneously. That the plaintiff, while stooping over the “ missed hole ” into which he had driven his pick, thereby causing the explosion of the blast, and receiving the flames in his face, could yet have escaped the force of the charge, goes far to establish his own statement that the explosion resulted from his having struck a piece of giant powder in the loose rock. It does not seem possible to the thoughtful observer that a “ missed hole,” made firm by tamping, as this was, could have been fired in this manner and yet left no evidences of the explosion. And yet the witness, Bowman, testifies that he visited the scene of the accident about an hour after it transpired, but could find no evidences of an explosion. How the powder came to be in that place cannot be accounted for except upon one of two theories: either it was left there through the carelessness of some one doing the blasting, or it was thrown out of its chamber in the face of the drift by the force of one of the other explosions; and it was sufficiently proven that such accidents occasionally occur without there being any way to prevent it. And just here it is entirely unnecessary to recapitulate the testimony upon this point; for unless it could be shown that the foreman had knowledge of such fact and failed to notify the plaintiff of the danger, or that he could have known of it by the exercise of reasonable diligence and care, the com-: pany would not be liable. There is no contention that the company had not employed a competent, skillful, and prudent man as its foreman; that the men engaged in drilling and blasting were not also skilled and careful workmen; or that the tools and machinery were not all that was expected; or that the explosives used as well as the caps or primers were not of the standard, and such as were used in other mines for like purposes; but that it was the neglect by the foreman of his duty to see that the blasts had all been fired, and to notify the plaintiff in the event they had not, which occasioned or led to the injury. This was the proof which it was incumbent upon the plaintiff to introduce in order to establish his right to recover, and while slight proof might have shifted this burden upon the company, yet when the defendant has shown the employment of a prudent and skillful foreman, who care — 449 — fully and thoroughly in company with the blasters examines and satisfies himself that all the charges had been fired, and who adopts all the reasonable and usual precautions for finding out that fact, we cannot but conclude that the company has exercised all reasonable care and diligence for the protection of its employees. Against this positive and uncontradicted testimony of the foreman and the two men engaged in doing the blasting, that the charges had all been exploded, and that this fact had been verified by actual count and inspection of the locality, we are asked to infer that they have sworn falsely, because in the opinion of four miners (sworn as experts), who heard the plaintiff testify it was a missed hole, and accepted this as a fact, it was negligence in the foreman not to have discovered it. It is the general concurrence of courts, that the testimony of experts even when admissible is uncertain and unsatisfactory, for an expert is never called as a witness unless his interest a.nd views have been previously ascertained to be with the party calling him, and even in the present instance it is plain that reputable opinion may be found on either side of the case. (Purifying Co. v. Christian, 4 Dill. 448; Barrett v. Hall, 1 Mason, 447; Daniels v. Foster, 26 Wis. 686; People v. Morrigan, 29 Mich. 5.) While the testimony of experts is undoubtedly to be treated and weighed by the same rules as applied to other evidence, yet we know of no case in which the mere opinion of experts is allowed to outweigh the positive, corroborated, and uncontradicted testimony of three unimpeached witnesses to a fact; and more especially must this be the case when, as in the present instance, the opinion is based upon a disputed state of facts. The obligation of employer and employee is mutual, and it is implied in the contract of hire that the master shall be liable for injuries which result from negligence, fraud, malice, or the exposure of his servants to risks not contemplated by the agreement; while the servant impliedly assumes all the ordinary risks which result from the nature of the employment. ¡Notwithstanding the progress and advancement in the art of mining it yet remains a hazardous and dangerous occupation, which in spite of the many obligations of the owner of a mine to his — 450 — employees, embraces other risks which the servant assumes as incident to the calling. This liability of the corporation and that of an individual toward their employees is the same, differing only in that the individual may if he choose personally supervise his business, while the corporation can only act through its agents. I stated before that the company had exercised all care in the selection of a foreman, who was proven to have been a man skilled in the business of conducting a mine, and a most careful and prudent person for snob a position; and in this respect the defendant has complied with the law. Shall it now be subjected to the payment of damages after its foreman has exercised all the diligence and care that canid be thought of to insure the safety of the miners ? The defendant can only act through its foreman, and from the very circumstances and nature of the accident it was impossible for him, or the men engaged in the blasting, to have known that the giant powder was contained in the loose rock, without moving it, the very thing the plaintiff was employed to do. The obligation of the company was not to insure the plaintiff against all injuries, but that through its agents it would do all that human foresight, care, and diligence could reasonably do, to protect him from the danger of unexploded charges or blasts. The dictates of intellectual belief are as imperious as those of conscience, and after a critical examination of the facts and the law governing the case we are irresistibly impelled to the conclusion that the defendant’s foreman exercised all the prudence and care which he could reasonably have done to discover whether the blasts had been exploded; that there was no negligence on his part; that the plaintiff was not injured from the explosion of a missed charge, but that his injuries resulted from striking his pick against a piece of giant powder in the loose rock, the presence of which was unknown to and could not have known with reasonable diligence to the defendant’s officers; and that the plaintiff’s loss is the result of an unforeseen and unavoidable accident incident to the risk of mining. The judgment of the lower court is therefore affirmed at cost of appellant. Judgment affirmed, McConnell, C. J., and Bach, J., concur.