Kelley v. Fourth of July Mining Co.

Pemberton, C. J. In this case the court instructed the jury that £ ‘it was the duty of the defendant to adopt all reasonable means and precautions to provide a safe place for the plaintiff in which to prosecute his work. ’ ’ The defendant assigns this as error. Counsel for the defendant contends that, while this instruction states the law in ordinary cases, it is not applicable to this case. His contention is that the plaintiff was not working in a place, but was working in the creation of a place. The evidence in this case is that the plaintiff was employed, at the time of the accident, in running a tunnel in defendant’s mine. He was doing this work under the immediate supervision and direction of John Sheehan, the foreman and manager of the mine. Sheehan was not working in the mine with plaintiff. The plaintiff was not engaged in creating a place, on his own judgment, and at his own risk. He assumed the risks naturally attendant upon driving the tunnel. It was the duty of defendant to keep that part of the tunnel or place already created safe, by whatever reasonable means were necessary. If the plaintiff had been injured while in the actual work of drilling or blasting in the face of the tunnel he was driving, he may have had no claim on the defendant for damn ages; for these were risks he assumed as a miner. But he did — 497 — not assume the risk of defendant’s failure to keep that part of the tunnel or place already created reasonably safe and secure. For instance: If a stone or material blasted or dug from the tunnel by plaintiff should have been blown against, or should have fallen upon, him, he would have had no remedy against defendant for any injury sustained thereby. This is a risk belonging to his employment, and which he assumed. But he did not, by his employment as a miner in driving the tunnel, assume the risk of the failure of the defendant to take such reasonable precautions as were requisite to prevent the caving and falling of the roof of that part of the tunnel already created, upon him, while engaged in his work. Nor did he assume the risk of the failure of the defendant to keep the floor of the tunnel so free from rock and debris as not to materially hinder or obstruct his escape from his place of work, in case of accident, such as occurred in this case, or might occur by premature or unexpected explosions of the dangerous materials he was using in his work. He assumed the risks incident to the work in front of him, and not the risks of defendant’s failure to properly care for that part of the tunnel or place behind him, which he had completed, and turned over to the care and control of the defendant. The authorities cited by defendant’s counsel, we think, are not applicable to the case at bar. The conditions and facts in the cases cited are dissimilar from those of this case. We do not think the plaintiff, at the time he was injured, was engaged in creating a place, or rendering a dangerous place safe, within the meaning of the cases cited by defendant’s counsel. In Union Pacific Ry. Co. v. Jarvi, 3 C. C. A. 433, 53 Fed. 67, the court says: “It is the duty of the employer to exercise ordinary care to provide a reasonably safe place in which his employe may perform his services. ’ ’ This was a case in which a miner was suing for injuries sustained in a mine by reason of a failure on the part of the employer to provide a ‘ ‘safe place’ ’ to work. The decision is a late one, having been rendered in October, 1892. It collates a large number of authorities, and contains an able and exhaustive discussion of the law governing this class of cases. — 498 — We think it clear, beyond question, that it was the duty of the defendant in this case to provide a reasonably safe place for the plaintiff to work in. To hold otherwise would not be in accordance with authority, sound public policy, or justice. (Cunningham v. Union Pac. Ry. Co, 4 Utah 206; 7 Pac. 795; Beeson v. Green Mt. G. Mining Co., 57 Cal. 20; Consolidated Coal Co. v. Wombacher, 134 Ill. 57; Quincy Coal Co. v. Hood, 77 Ill. 68.) See, also, authorities cited in Union Pacific Railway Co. v. Jarvi, supra; Mather v. Rillston, 156 U. S. 391. The cases cited above are those in which damages were sought to be recovered for injuries sustained in mines. They might be multiplied many times. They all hold it to be the duty of the employer to provide a reasonably safe place in which the employe may perform his service, and a failure to do so actionable negligence. Counsel for defendant contends that the evidence shows that the plaintiff so far contributed, by his own negligence, to his injuries, as to defeat his right of recovery in this case. The plaintiff testified that he assisted in putting the timbers in the mine, by direction of Sheehan; that he had not done any timbering in the mine before; that his business was blasting and drilling in the face of the tunnel; that, when he asked Sheehan if he did not think the mine needed timbering, Sheehan said he would attend to that, that he was there and knew his business, having been timberman in the Moulton for five years. Afterwards, Sheehan sent the carman, who was employed at odd jobs as well as running the car, to assist in putting in the timbers. After this, plaintiff and his partner put in the stull. This was put in under the directions of Sheehan. On the part of defendant, there is evidence that it was part of plaintiff’s duty to timber the mine. This is disputed. It nowhere appears that plaintiff, or his working partner, or the carman, understood timbering. Whether the stull was properly placed in the mine is a disputed question. Nor is it shown that the stull, if properly put in, was sufficient to support the roof; at least, it is a disputed matter. It is a mooted question whether the mine should not have been protected by full sets — 499 — of timbers, or, at least, other kind of timbers, at the place where the accident occurred. The evidence shows that the other timbers put'in near the stull did not fall when it did. Nor is it improbable that the stull was displaced by the blasts of the afternoon before the accident. Plaintiff testifies that, after the stull was put in, Sheehan came into the mine and tested it with a two-handed hammer. This, Sheehan denies. Sheehan says, in his testimony, that he did not examine the timbers or stull particularly; he just glanced at them as he passed by; that he just held up his candle and looked at the stull as he went through. From this evidence, it appears that defendant did not use proper care in procuring competent men to timber the mine; that Sheehan, defendant’s manager, was guilty of negligence in not properly inspecting these timbers after they were put in the mine. In Union Pacific Ry. Co. v. Jarvi, supra, it is said : “Of the master is required a care and diligence in the preparation and subsequent inspection of such a place, as a room in a mine, that is not, in the first instance, demanded of the servant. The former must watch, inspect, and care for the slopes through which and in which the servants work, as a person charged with the duty of keeping them reasonably safe would do. ’ ’ Witness Donan, a miner of considerable experience, says that the tunnel, according to the rules of careful mining, should have been timbered every four feet, with full sets of timbers, on account of the character of the rock and ground in the tunnel. This, of course, was not done. He says the tunnel was not sufficiently timbered to hold the roof. Sheehan, himself, testifies that the roof and sides were “drummy,” by which he evidently means not solid and strong. We think the evidence was sufficient to warrant the jury in believing that the mine was not sufficiently timbered to prevent caving, and that defendant did not use proper care in selecting competent timbermen to do the work. Plaintiff testifies that, as to the mine being safely and sufficiently timbered, he took Sheehan’s assurance that it was safe, and had no ap — 500 — prehension whatever. As to the timbering of the mine, the most that can be charged as negligence on the part of the plaintiff is that he did not properly put in the stull. But the evidence is not conclusive, by any means, that the cave occurred on account of the stull being improperly placed. It is not an illegitimate inference, from the evidence, that the cave would have occurred however well the stull might have been put in. It is a fair inference from the evidence that the stull was not sufficient to support the roof of the mine, and that the cave occurred for want of sufficient timbering. And it may not be improper, in this connection, to remark that the evidence discloses the fact that Sheehan stated that his instructions were to run the mine with as little expense as possible. Certainly, the evidence does not disclose any extravagance in placing timbers in the mine, or in securing competent men to do the work. We do not think the evidence discloses such contributory negligence on the part of plaintiff as to defeat his right to recover, as contended by defendant. The court instructed the jury as follows: “If you find from the evidence that the danger of the place in which the plaintiff was working was increased by reason of the accumulation of rock in the drift behind him, in excess of what would ordinarily accumulate in the conduct of the business properly managed (if you find that there was such accumulation in the drift); and you further find that he called the attention of the foreman to the amassing of such rock and debris, and requested him to have the same removed, and the foreman expressly promised to do so, — the plaintiff was justified in continuing at work, notwithstanding his danger was increased'by such ac-, cumulation, for such period of time after the promise as it would be reasonable to allow for its performance; and, for any injury suffered within any period which would not preclude the reasonable expectation that the promise might be kept, he may recover. ’ ’ Counsel for defendant assigns the giving of this instruction as error, and claims that it is in conflict with the views of this court as expressed in McAndrews v. Montana Union Ry. Co., — 501 — 15 Mont. 290. The instruction under consideration is in harmony with the law as declared by the supreme court in Hough v. Railway Co., 100 U. S. 213. In McAndrews v. Montana Union Ry. Co., supra, this court said : £ £ But this rule is a qualified one. If the machinery is not only defective, but so obviously dangerous that no ordinarily prudent man would assume the risk of using it, and the employe does use it, knowing its absolutely and obviously dangerous condition, and the dangers of using it, the master is not liable, notwithstanding the promise to remedy the defect. This qualification to the rule is well stated in Indianapolis, Etc., Ry. Co. v. Watson, 114 Ind. 20, 14 N. E. 721, and 15 N. E. 824, in the following language: £ Where an employe knows that the danger is great and immediate, such as a reasonably prudent man would not assume, he cannot recover for an injury, even though he remained in the employer’s service in reliance upon the latter’s promise to remedy the defects which produced the danger. ’ ’ ’ The facts of the case at bar widely distinguish it from the McAndrews case. McAndrews was using a car which he knew to be absolutely and obviously dangerous. He not only used it for a long time, knowing its dangerous condition, but, at the time he was injured by the car, he was using it in a reckless manner. Under such circumstances, we held he could not rely or recover upon the promise of the foreman to get a new car. In this case, there is no evidence or pretense that the danger of the mine caving at the time of the accident was obvious, absolute, or immediate, and that plaintiff knew of such danger, or that a reasonably intelligent and prudent man, under like circumstances, would have apprehended such danger to himself. The plaintiff testifies that the assurance^ of Sheehan as to the safety of the mine were such that he apprehended no danger whatever. Under such circumstances, by relying upon the express promise of Sheehan to remove the debris from the tunnel, and continuing at work for a reasonably sufficient time for the performance of such promise, he was not guilty of — 502 — such contributory negligence as to defeat his right of recovery. We do not think, therefore, that the court erred, under such circumstance, in instructing the jury that, “for any injury suffered within any period which would not preclude the reasonable expectation that the promise might be kept, he [plaintiff] may recover! ’ ’ In view of the facts, we think the instruction properly declared the law. In Union Pacific Ry. Co. v. Jarvi, supra, it is said: “The degrees of care required of the master and servant also differ, because defects in a piece of machinery or in the roof of a mine that to the eye of a competent inspector, such as the master employs, portend unnecessary and unreasonable risks and great danger, may have no such significance to a laborer or miner who has had no experience in watching or caring for machinery or roofs or slopes in a mine; and the latter is not chargeable with contributory negligence simply because he sees or knows the defects, unless a reasonably intelligent and prudent man would, under like circumstances, have known or apprehended the risks which those defects indicate. The dangers, and not the defects merely, must have been so obvious and threatening that a reasonably prudent man would have avoided them, in order to charge the servant with contributory negligence. ’5 And see authorities cited in that case. Counsel for the defendant insists that the instruction should have been in accordance with +he modified rule laid down in the McAndrews case. But, as we have seen, there was no evidence in the case calling for this modification. Nor does the record disclose that counsel sought in any way to have the instruction modified, in this respect or any other, by the court. We do not think the instruction could be held to be erroneous because it did not state all the law, or all the law under all circumstances and every state of facts, and because it was not modified so as to meet all circumstances and questions of fact, especially where the other instructions fully cover the law of the case. (Grant v. Varney, (Colo. Sup.) 40 Pac. 771; Shumard v. Johnson, (Tex. Sup.) 17 S. W. 398; Elliott’s App. Proc. § 730.) — 503 — Counsel for defendant contends that by this instruction the court determined, as a matter of law, that the plaintiff was justified in continuing at work after Sheehan’s promise to remove the debris, without leaving it for the jury to determine whether he was justified in so doing, under all the circumstances. The only circumstances and facts that would have rendered it contributory negligence for him to remain at work after this promise would have been the obviously absolutely dangerous condition of the tunnel. As we have said before, there was no evidence of such condition to which the court could have called the jury’s attention, or submitted to the jury for consideration. We are unable on this account to discover any defect or error in the instruction. In other instructions the court plainly told the jury that plaintiff could not recover if the evidence showed him to be guilty of contributory negligence. Upon this question, the court instructed the jury as follows: ‘‘A man cannot shut his eyes to a fact, he cannot shut his eyes to a danger, and then ask for damages for an injury received from that danger. ’ ’ The substance of this instruction is repeated, with emphasis, in other parts of the charge to the jury. The instructions of the court, taken as a whole, fully and fairly stated the law applicable to the case, to the jury. We do not discover that they were conflicting or misleading in any respect. The instructions fully stated the law of negligence to the jury, and, we think, were remarkably fair, as a whole, to the defendant. We do not think it necessary or profitable to consider in detail the many technical objections to the instructions raised by counsel for the defendant. Considering the whole case, we think it clearly appears that Sheehan was the vice-principal of the defendant corporation. He employed and discharged the employes. He supplied the mine with materials and implements for .its development. He had full control of the property, the employes, tools, materials, and complete charge of the management and development of the mine. No officer of the corporation, or other person or agent, had anything to do with it, or was ever present at the — 504 — mine. Under such circumstances, it cannot be disputed that he was the legal representative of the defendant corporation. We think the evidence shows he was guilty of negligence in not sufficiently timbering the tunnel where plaintiff was working and received his injuries, and in not procuring competent timbermen to do the work. He was guilty of negligence in not keeping the floor of the tunnel so free from debris as not to materially delay, hinder, or obstruct escape by the plaintiff from the place of his work, in case of accident. Sheehan being the vice-principal of the defendant, his negligence was its negligence; and it is, and should be, held liable for whatever injuries plaintiff sustained by reason thereof. The judgment and order appealed from are affirmed. Affirmed. De Witt, J., concurs. Hunt, J., having tried this case as district judge, did not participate in this decision.