Mace v. Carolina Mineral Co.

WaleeR, J., after stating tbe case: It appears in this case tbat tbe intestate of plaintiff bad been employed to work as foreman in tbe defendant’s service, and as overseer of tbe work performed by others placed under bis authority. He was an experienced miner, having been engaged in tbe business of mining for many years. Because of bis expertness thus acquired, tbe defendant was induced to take him into its service. Tbe work be was to do on tbe day of the- accident was left, in respect to tbe method and manner of doing it, to.bis own judgment, and be was perfectly free to exercise bis own comm'on sense and skill in doing it. According to tbe evidence and tbe' description of tbe conditions in tbe mine just before be was killed, be did no.t need any one to tell him tbat by digging under tbe projecting or overhanging bank of dirt and rock be was placing himself in a very dangerous position, as tbe unsupported bank would necessarily cave in when be removed tbe last prop tbat kept — 146 — it in place. Any man of ordinary sense and common prudence would know of this danger and appreciate tbe risk of cutting out tbe foundation upon wbicb a bank of dirt rests and leaving it overbanging, without any support, brace, or prop to prevent its falling in and crushing him, as be was in tbe way and must needs be hurt. Tbe danger of such a place was so imminent that any ordinarily prudent man would not have so cut underneath tbe bank as to weaken its support and cause it to fall, or, if this was necessary to be done, would have taken measures to brace it in some way as tbe work progressed. 'This Court has often held that “an employer’s duty to provide for bis employees a reasonably safe place to work does not extend to ordinary conditions arising during tbe progress of tbe work when tbe employee doing bis work in bis own way can see and understand tbe dangers and avoid them by tbe exercise of reasonable care.” Simpson v. R. R., 154 N. C., 51. Tbe rule was well stated in Covington v. Furniture Co., 138 N. C., 374, as follows: “The general rule of law is that when tbe danger is obvious and is of such a nature that it can be appreciated and understood by tbe servant as well as by tbe master or by any one else, and when tbe servant has as good an opportunity as tbe master or any one else of seeing what tbe danger is, and is permitted to do bis work in bis own way and can avoid tbe danger by the exercise of reasonable care, tbe servant cannot recover against the master for tbe injuries received in consequence of tbe condition of things wbicb constituted tbe danger. If tbe servant is injured, it is from bis own want of care.” Warwick v. Ginning Co., 153 N. C., 262; House v. R. R., 152 N. C., 397; Hicks v. Mfg. Co.; 138 N. C., 319. In Armour v. Hahn, 111 U. S., 313, it was held that tbe obligation of a master to provide reasonably safe places and structures for bis servants to work upon does not impose upon him tbe duty towards them of keeping a building which they are employed in erecting in a _ safe condition at every moment of their work, so far as its safety depends upon tbe due performance of tbe work by them and their fellows. Tbe case of Cons. Coal and Mining Co. v. Floyd, 51 Ohio St., 542, has many facts in common with this one, and they are sufficiently similar in that respect to make it a good authority. There it appeared that tbe intestate was killed by tbe fall of slate from the roof of a mine, due to tbe failure to install props while tbe work was in progress. Tbe claim for damages was sought to be sustained by a class of cases wbicb bold that tbe duty of tbe master to provide a safe working place and machinery for bis employees cannot be delegated, so as to absolve tbe master from liability in case of failure of tbe vice principal to perform that duty. It does not seem necessary to review these cases. They are, as a rule, based upon tbe proposition that where tbe appliance or place is one wbicb has been furnished for tbe work in wbicb tbe servants are to be engaged, there tbe duty above stated attaches to tbe master. Tbe Court said: “We need — 147 — not discuss this proposition, for we have not .that case. Here the place was not furnished as in any sense a permanent place of work, but was a place in which surrounding conditions were constantly changing, and instead of being a place furnished by the master for the employees within the spirit of. the decisions referred to, was a place the furnishing and preparation of which was, in itself, a part of the work which they were employed to perform. The distinction is shown in a number of cases, among which may be cited: Fraser v. Lumber Co., 45 Minn., 235; McGinty v. Reservoir Co., 155 Mass., 183; Coal Co. v. Scheller, 42 Ill. App., 619.” And so in Petaja v. A. I. Mining Co., 32 L. R. A. (O. S.), 435, the facts were that the plaintiff was injured by the fall of ore while working in the room of a mine used by the hands while excavating for ore and getting it out. It was decided, and affirmed on a rehearing, that the place where the injury occurred must have been furnished by the master, or be one which his duty to the servant required him to furnish and keep in a safe condition, before the ordinary rule of liability can be applied, and that the place then in question was not of that description. The Court said: “Now, if this room can properly be said to be a place furnished to the servants in which to carry on the master’s business and which he must, at his peril, keep in reasonably safe condition, as a factory or warehouse, then the case should have gone to the jury; but if it is not such a place, then it falls within that other rule, that the duty of the master is performed by using reasonable care or furnishing suitable material and employing capable and efficient men to do the work. In view of the case of Schrolder v. Flint and P. M. R. Co., 103 Mich., 213, and Beasley v. F. W. Wheeler & Co., 103 Mich., 196, cited in the former opinion, there is no doubt that a master must furnish a reasonably safe place for a servant to work if a structure is required for the carrying on of his business; and the briefs furnished in this case upon the part of the plaintiff would render us more assistance had they called our attention to cases establishing the claim that a master is obliged to make safe the place which the servant makes and occupies as a means of doing his work or which results as an incident of the work, although it necessitates his presence in a place to a greater or less degree unsafe. In such cases must the master stay with or follow up the servants, to be certain that they make the place safe, so that they or some of them be not injured? There are many cases which draw the distinction pointed out. Such a case is Beasley v. F. W. Wheeler, supra.” The same was held to be law in Fraser v. R. R. Lumber Co., 45 Minn., 237, where it was said: “An important consideration often overlooked is, whether the structure, appliance, or instrumentality is one which has been furnished for the work in which the servants are, to be engaged, or whether the furnishing and preparation of it is itself part of the work which they are required to perform.” — 148 — It was beld in St. L. and M. R. R. Co. v. Baker, 163 S. W. Rep., 152, that where a servant was employed to wreck a structure, such as an unsafe building, or to do blasting and excavating, the duty of keeping the place of work safe, if it was originally so, devolves upon the servant, and'not on the master. The rule that an employer must exercise ordinary care to provide a safe place of work for his employee was held in Riley v. Neptune, 103 N. E. Rep., 406, not to apply where from the nature thereof the conditions are ever changing, so as to increase or diminish the danger in the course of the particular work, the same being passing risks arising out of the nature of the work and of which the servant is as well informed as the master. L. P. Cement Co. v. Bass, 103 N. E. R., 483. It was held in Andrews v. T. Mining Co., 146 N. W. Rep., 394, that the doctrine of furnishing a safe place to the servant to do his work does not apply where a miner was killed while engaged in making “hitches” in which to place timbers to hold up the roof, “since he is required to make the piece of work safe as he went.” Nor, it has been said, does the rule of a safe place apply to building operations where conditions are continually changing, due to the acts of the servants themselves. Roshalt v. Worden-Allen Co., 144 N. W. Rep., 650. It was not necessary that intestate should have had any warning from the superintendent. He was an expert himself in mining, and it did not even require-that one should be so thoroughly experienced in such work as he was to know or understand that the work was dangerous, for a man of ordinary intelligence would know that to withdraw a prop or foundation from an object resting upon it would necessarily cause it to fall. “1. An employer may ordinarily assume that an adult employee has that knowledge which is acquired' by common experience, and hence understands those dangers which may readily be known by common observation. “2. AH adult employees are presumed to have some knowledge of the properties of nature, and the operation of natural laws, such as the law of gravitation. “3. An employee assumes the risk of injury from obvious dangers, unless because of his immaturity, inexperience, or other disability he is incapable of appreciating the danger therefrom.” Riles v. Neptune, 103 N. E. (Ind.), 406. No one should be allowed to justify or excuse his own improper conduct by alleging that he expected that another would prevent such conduct on his part. Houston, etc., Railroad Co. v. Clemmens, 55 Texas, 88. Intestate was the author of his own misfortune, and no one was to blame but himself. This is shown with as near an approach to a demonstration as anything short of mathematics will permit, as was said of a plain act of negligence in B. and P. Railroad Co. v. Jones, 95 U. S., 439. The same Court, in Bunt v. S. B. Mining Co., 138 U. S., 483, — 149 — where an employee bad been killed by removing a post wbicb supported the roof of a mine, thus causing the roof to fall upon him, said: “Bunt participated in taking out the post with full knowledge of the danger, and after the post had been removed sat down under the shattered roof. Eecklessness could hardly go further. The evidence would warrant no other conclusion than that he took the risks of the work in which he was employed and that his negligence in the course of that work was the direct cause of his death.” The two cases are parallel with each other. The fact that there a post was taken out, and here some dirt was dug out, can make no difference. In this ease the danger of the place where intestate was working, and the cause of the accident, were due to his own careless act in undermining the upper wall of dirt, so that it lost its natural support and fell upon him. The recent case of Neville v. Bonsal, 166 N. C., 218, in which a servant was killed by an act of the foreman similar to the one that caused the intestate’s death, is applicable. We held the master liable because the foreman had been negligent in digging at the bottom of an embankment, which caused the upper layer of dirt to fall and kill the intestate of the plaintiff in that case. The Court there said: “The work was being done under the management of one Stowe, who, about three hours before the cave-in, ordered the plaintiff’s intestate to work at that place. • The evidence shows that Stowe was in and out of the pit all the time, and knew of the conditions. It is a fair inference from the evidence that Stowe took no precautions to prevent a cave-in before the supporting bank of dirt was removed. It was the duty of Stowe to take such precautions as the situation permitted, so as to prevent injury to his subordinates when the bank of dirt at the base of the pit was removed; ordinary prudence dictated it.” If the company was held liable because of its foreman’s culpable negligence in causing the death of the intestate by improperly excavating the bank of earth, so that its support was weakened and it fell, it follows that the company would not have been liable if the foreman himself had been killed by the same act of negligence, which would, in that case, have been the efficient and proximate cause of the. fatal injury. It was even held in Alteriac v. Coal Co., 161 Ala., 435, that “Where a miner of many years experience saw a pot- or bell-shaped rock in the roof of a mine, aud knew that it was more or less disconnected and liable to fall without warning at any moment, and after telling his superior of it, and that he would not work without timbers, but who returned to the work under the pot- or bell-shaped rock on being told to do so, and on the promise that the timber would be sent at once, assumed the risk incident to his return and work thereunder.” It must be borne in mind that this foreman of hands was himself a very experienced miner, and knew, as the evidence shows, what was the safe method of doing the work. It appears that those of even less experience in mining knew of the danger. If he — 150 — bad been inexperienced and was put to do work of a dangerous character without proper warning or instruction, the case might be different. He knew of the danger and was fully able to take care of himself, and the fault was all his own. No man, by his own voluntary and negligent act, will be permitted to impose liability on another for its injurious consequences, for he will not be allowed to reap an advantage from his own wrong. Whitson v. Wrenn, 134 N. C., 86. The peril was obvious, and he should not have caused it or exposed himself to it. It follows that there was no wrong committed by defendant which would make it liable for the intestate’s death, and the nonsuit was properly granted. Affirmed.