Peterson v. Otho Development & Power Co.

WHITING, P. J. This action was brought to recover damages alleged to have been suffered by plaintiff by reason of an injury received as a result of defendant’s1 negligence. Verdict and judgment were for plaintiff. From such judgment and an order denying a new trial, this appeal was taken. Appellant assigns the insufficiency o'f the evidence to support the verdict. Respondent was engaged as a miner in the sinking of a shaft on appellant’s property. While drilling a hole his drill came in contact with and exploded a heavy charge of dynamite that was in whkt is known as a “miss-fire”hole. The miners would drill a number of holes iii the floor of the shaft, would then charge them with dynamite, and, by means of fuses, attempt to fire all the charges at one time. When it happened that, for any cause, one of such charges failed to explode, the drill hole containing such charge was spoken of as a “miss-fire” hole. It was from the explosion of the charge in a miss-fire hole that respondent was injured. This miss-fire hole resulted from «the failure of a prior shift of miners to explode all the charges of dynamite by it placed in drill holes. Respondent alleged that appellant had been negligent in several particulars: In not giving him notice of the existence of the miss-fire hole, in not providing a reasonably safe place in which to work, and in not furnishing him and his fellow workmen with safe and proper tools and appliances, including powder, caps, fuse, ignition aparatas, etc. None of such allegations had. any support in the evidence save the allegation that appellant had failed to provide a reasonably safe place for respondent to work. [1,2] If the shaft was not a reasonably safe place at the time of this accident, it was solely because of the miss-fire hole; and it was a reasonably safe place to work unless such miss-fire hole resulted from the use of improper fuse. If a proper fuse was used and there yet occurred a miss-fire which rendered the shaft less safe, such increased unsafety would be merely an in [636] c'i-dent to a properly conducted mining business,- and tbe shaft wherein it existed would still be a reasonably safe one— in other words, whether or not a place in- which employes are -asked to work is a reasonably -safe one depends, not upon its actual -freedom from danger, but upon whether the employer has used all proper precautions looking to- making and keeping such place as safe a-s die nature of the business conducted therein will reasonably permit. There was thus presented to the jury two questions: (a) Was an- improper fuse furnished to the former shift and used by it when attempting to fire the charge in this miss-fire hole? (b) If so, was the miss-firing of such hole traceable to the use of such improper ‘fuse? An affirmative answer to the- first would -be a finding that appellant was negligent. An affirmative answer to the second would be a finding that such negligence was the -cause of respondent’s injurio There was ample evidence to support an affirmative answer to the first question. There was also ample evidence that, while there were liable to be miss-fire holes -even though proper fuse was used, the chance of there being such miss-fire holes was greatly increased by -the use of the improper fuse. When an employer negligentl)r increases1 a known risk and an injury -occurs, the burden should certainly rest upon such employer to show that such injury did not occur because of that which increased -the risk. [3] But appellant -pleaded assumption of risk. The rules of law relating to what is termed assumption of risk are too well established' to call for any citation of authorities, -though the basi-s upon which such rules rest m-ajr be in .more or less dispute. An employe assumes all such- risks incident to his employment as are not the -result -o-f th-e employer’s- negligence. . An- employe assumes no risks from- -dangers resulting from 'his employer’s negligence, except where he has notice of such risks; but he will be regarded as having assumed even -such risks as result from his employer’s negligence if he had, or ought to1 have obtained, knowledge of such risks before his injury was received. There are exceptions to this' last rule, as in the-case where an employe continues in an employment, -though -subject to -extraordinary risks caused by his employer’s- negligence, because of a promise that the cause -of such extraordinary risk will be removed. When referring to- an employer’s negligence in connection with the rules pertaining to [637] Assumption of risks, we include under the term “negligence” any and every failure of the employer to* fulfill 'his obligation to provide for his emoloye’s' safety. Under the above rules, did the testimony of respondent disclose that he assumed the risk of the explosion which caused his injury? It clearly did. According to his testimony he Was an experienced miner; he had been working for appellant about two> months at the time of the accident ;the shaft was a very wet one; in wet shafts there are more mis-s-fire holes than in dry shafts; in this shaft there were a greater per cent, of miss-fire holes than he had ever known'of in other shafts in that section; lie did not know of any shifts working in this shaft but that 'had miss-fire holes; he did not know the kind of fuse used in the miss-fire holes; lie did not consider them the best quality; he told the superin-tedent of the mine that “they- were not the best they ought to be”; he was advised that the former shift reported that there were two miss-fire holes; there was no way of notifying an on-coming shift as to location of mis-s-fire holes; he made all possible effort to find the miss-fire holes and found' nothing; and he came to the conclusion that there was no miss-fire hole. AVe thus find that, while respondent did not know what kind of fuse was being used, he believed a defective fuse was being- used and he was fully advised as to the unusual risks connected with working in this particular shaft under the existing conditions. Being fully advised as to the risks it was immaterial whether he knew -the causes and also immaterial -as to- whether those risks were 'brought about by negligence on -part of appellant. The jury might have -been- justified in finding that there was no assumption of .such extra risk as wa-s caused by appellant’s failure to provide proper -fuse, if there had been any evidence upon which it could have based a finding that respondent did not comprehend or understand the risks incident to- working in 'this particular shaft, or if there had been any .evidence that, Comprehending such extraordinary risk, he continued to work 'because of a promise that the cause of such extraordinary risk would be removed. It cannot be said that, because he concluded there was no miss-fire hole, he did not comprehend the risk. If proper fuse had been used and a m-iss-fire bole had1 been -reported, no one could claim that an employe who, after receiving such report, continued to [638] work -in the shaft, did not assume the risks incident to the possible existence of such a miss-fire hole, although, after examination, he failed to locate the hole and concluded there was none. Such a risk was one clearly assumed by an experienced miner. The evidence bearing upon the question of contributary negligence was conflicting, and it would -serve no useful purpose to review -it. Appellant assigns error in the instructions given. There was certainly much conflict in the several instructions given, especially those relating to a safe place to work, and those relating to the matter of superior officer. Such conflict will undoubtedly be avoided upon a new trial and the instructions given be in harmony with our views as above announced. The judgment appealed from is reversed.