Sommers v. Standard Mining Co.

Ostrander, J. (after stating the facts). There is no testimony tending to prove the fact alleged in the amendment to the declaration in manner following — “it did permit the miners employed in the rooms along the west entry aforesaid to shove out loaded cars upon the track of said entry and there leave them unattended and unblocked, or spragged.” There is no testimony tending to prove that defendant had knowledge that any one except the driver ever assumed to move a car to or upon the track in this gallery. It was a risk of the employment that an intermeddler, or a miner, would do what he had no right or authority to do. In a sense, the shaft, and employment therein, was made dangerous, unsafe, by this risk. It is admitted by counsel for appellant that his client assumed [115] all the risk attendant upon the driver leaving cars unblocked at the top of the incline. Was it to be reasonably apprehended that cars other than those moved by the driver would come out of this gallery ? None had ever so come out. The regular course of defendant’s business involved no such thing. Rather it insured against it. It is not apparent how any set of rules upon the subject would operate more effectively than did the division of labor proven, the assignment of the duty of moving cars to the driver alone. Moran v. Railway, 99 Me. 127; Rutledge v. Railway Co., 123 Mo. 121. See, also, Deye v. Tool Co., 70 C. C. A. 64-66. Nor can it be said "that failure to inform plaintiff of a not to be apprehended danger was the cause of his injury. The verdict was properly directed. The judgment is affirmed. Carpenter, C. J., and McAlvay, Grant, and Montgomery, JJ., concurred.