Petaja v. Aurora Iron Mining Co.

Hooker, J. Plantiff, a trammer in defendant’s iron mine, was injured by the fall of ore from the roof of the room in which he was at work loading ore into a car. The work was conducted as follows: The miners loosened and brought down the ore to the floor of the stope or room made by taking out the ore, which room was constantly being enlarged by the process. This ore was loaded upon ears and removed by common laborers, called “trammers.” As fast as the ore was removed, it was the practice to support the roof by timbers and posts set a few feet apart. These were called “sets,” and were put in place by a force or gang of men who were called from place to place, as wanted, upon notice from the miners themselves, or through the shift boss or foreman, who had charge of the work of the mine. Above the shift boss was a captain, who had general supervision of the work in the mine. The posts were placed about eight feet apart, a set being eight feet square. The post, being two feet in diameter, was capped and braced, and covered with lagging to support the roof, which had a tendency to crumble. Sometimes large masses of ore would fall, as in this instance. The drift or vein was twelve sets wide, [467] and the room in question was being mined across the vein, about forty feet of the vein being its length, while it would be about one hundred feet wide across the vein, when completed. The miners had taken out sufficient ore to make room for five sets into the vein, and so much appears to have been properly timbered up. At the time of the accident they had mined a space in advance of the last set, which the plaintiff claims was wider than should have been taken without support. The testimony differs about its width, but there is evidence that it was not sufficiently cleaned out to permit of-timbering at the time of the accident, and this does not seem to have been disputed. Some indications of danger were noticed by the trammers, who called the attention of the shift boss to it, but, after looking at it, he told them it was all right, and to “quit monkeying,” and resume work, which they did. The accident occurred about 30 minutes later. The court directed a verdict for the defendant. The claim of the plaintiff is that the master did not furnish a safe place to work. In our opinion, this place where the men were at work was an incident of mining. It was a result of the common work of the miner and the trammer, both of whose labor combined to make it. After the miner had loosened the ore, and the trammer had removed it, it was ready for the timber men, who followed up when notified, -putting in sets, which enabled the process of mining to be carried further. The undisputed evidence shows that the trammers and miners had not. put the newly-opened space in condition for the timber men, and that the miners had not caused them to be notified that their services were required. If there can be said to have been culpable negligence, it was either in mining too large a space before cutting out the corners preparatory for the sets, or in failing to notify the timber men if sets could have been put in before the ore was still further removed. In either case, if the fault of the miner, it was the negligence of a fellow-servant under the plainest rules. And the same is [468] true if it was through a failure upon the part of the shift boss to cause timbering to be done earlier. He was a foreman, who directed When and where blasts should be put in, and where the men should work, and who was appealed to to settle questions arising as the work progressed. His relation to the men under him was similar to that of a foreman of a section gang upon a railroad to his men, or one in charge of workmen upon a train. Schroeder v. Railroad Co., 103 Mich. 213. Unless it can be said that the duty to furnish a safe place to work is involved, the court was right in directing a verdict for defendant. There are duties which a master owes to emplbyés, which he must perform; and, while he may confide the performance of such to another, the obligation is still the master’s, and he cannot avoid it by authorizing another to perform the act. In such oases it is not an answer to say that he has provided a competent agent, although such agent may be a fellow workman, and in many things a fellow servant, of the injured person. This question has been discussed of late, and authorities cited, in the opinion of Mr. Justice Montgomery in the case of Schroeder v. Railroad Co., supra. See, also, Beesley v. F. W. Wheeler & Co., 103 Mich. 196. In the latter case the distinction between temporary places built to assist in construction, as stagings, and permanent places, within which men are expected to perform labor, is pointed out. The only difference between the Beesley case and this is that in the former the staging was preliminary to the work of construction, while in this it was an incident of the work being done; and we see no difference in principle. The same distinction was made in the case of Coal & Mining Co. v. Clay’s Adm’r, 51 Ohio St. 542. This was a case of injury resulting from a failure to support the roof of a mine, and the court say: “We need 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 [469] which surrounding conditions were constantly changing; and, instead of being a place furnished by the master for the employés, within the spirit of the decisions referred to, Avas a place the furnishing and preparation of which was in itself part of the work which they were employed to perform. The distinction is shown in a number 'of cases” (which are cited in the opinion). See, also, Butler v. Townsend, 126 N. Y. 110; Benzing v. Steinway, 101 N. Y. 547; Stringham v. Hilton, 111 N. Y. 188. It folloAvs that the judgment should be affirmed. The other Justices concurred.