Shaw v. New Year Gold Mines Co.

MR. COMMISSIONER CLAYBERG prepared the following opinion for the court: Appeal from a judgment of nonsuit. Joseph Adams, who was plaintiff’s intestate, brought suit against the New Year Gold Mines Company to recover damages for personal injury caused by the alleged negligence of defendant. — 143 — The material allegations of the complaint as to this negligence are as follows: “(4) That the plaintiff, at the time of the accident, hereinafter set forth, and for some time prior thereto, was actually engaged and employed by the defendant as a miner in said Old Bach mine; that the plaintiff was employed as such miner in drilling, blasting and driving a tunnel in said mine. “(5) That it was the duty of the defendant to provide and maintain a reasonably safe place for the plaintiff to work in, and to keep and maintain said tunnel in which plaintiff was working in a safe condition, so as not to expose the plaintiff to any unnecessary or extraordinary hazard or peril. “(6) That the defendant failed and neglected to perform and discharge its said duty to the plaintiff, and knowingly and negligently permitted the place in which plaintiff was working to become unsafe, thereby exposing the plaintiff to extraordinary hazard and peril, as is more particularly set out in the next paragraph herein. “(7) That on the morning of the 25th of September, 1900, while the two men employed on the day shift in said tunnel were at work therein, and immediately after the two miners aforesaid had loaded a hole with blasting powder in the bottom of the tunnel, as it was their custom and duty to do at said time, the foreman of the defendant came to the place where said men were working, and ordered and directed them not to fire the hole loaded by them with blasting powder as aforesaid; that said men obeyed the instructions of said foreman, and left the said blast as it was, and the same remained unexploded until the accident to the plaintiff as herein stated; that said men on the day shift quit work at 6 o’clock on said day, and that the plaintiff and his partner on the night shift went to work, as was their duty, at 7:30 p. m. on said day, in the same place where said day shift had been- working; that the plaintiff, shortly after commencing work as aforesaid, started in to clean up the bottom of said tunnel which had been left by the day shift, and which it was the — 144 — duty of the plaintiff to do, and plaintiff accordingly began to drill holes in the bottom of said tunnel a few feet from the face of the drift, for the purpose of loading them with blasting powder and cleaning up said bottom, and while the plaintiff was so drilling in said place the charge of blasting powder loaded by the day shift in the morning as aforesaid exploded, which explosion caused plaintiff to receive severe and grievous injuries, his left eye .being blinded and the sight in the other eye being seriously affected, his jaw being fractured, most of his teeth being knocked out, his side and chest being severely bruised and injured, his left hand being almost blown off, so that it was necessary to have the same amputated, his right hand being rendered crippled and useless, and suffering also a compound fracture of the left arm between the elbow and the wrist, said injuries causing him great and excruciating pain and suffering, and confining him to the house and hospital for several months; that when plaintiff went to work on the evening of September 25th as aforesaid, and up to the time when said accident occurred, plaintiff did not know and had no means of knowing that there was at said place, or anywhere in said tunnel, any charge or charges of blasting powder not shot off, and could not have discovered the fact except by being informed thereof; that the defendant and its said foreman knew, or by the use of reasonable diligence might have known, of the existence of said unexp’loded blast, and of the danger to the plaintiff therefrom, and it Avas the bounden duty of the defendant and its said foreman to convey such information to plaintiff, but that the defendant and its said foreman failed and neglected so to do, and willfully, knoAAÚngly and negligently allowed and directed the plaintiff to go to Avork in said place, Avhere his duty called him, in ignorance of said danger; that said explosion occurred and plaintiff Avas injured as aforesaid without any fault or negligence on his part, but solely because of the defendant’s negligence as aforesaid; that the said foreman Avas the vice-principal of the defendant in all matters relating to the working and operating of said Old .Ilach mine, and with reference'to the employment of — 145 — the plaintiff and the other miners mentioned herein, and that the negligence of said foreman as aforesaid was the negligence of the defendant.” “(9) That by reason of the said neglect and omission of the defendant to keep and maintain a safe place wherein plaintiff was required to work as aforesaid as defendant’s employe, and by reason of the injuries suffered by plaintiff solely because of said negligence and want of ordinary care on the part of the defendant, as hereinbefore set forth, the plaintiff has been damaged by the defendant in the sum of thirty thousand dollars.” The answer of defendant denies that the injuries to plaintiff were caused by the negligence of defendant. Sets up contributory negligence on the part of plaintiff. Alleges that he had been employed at the mine for some time, knew the conditions, and knew that in running the tunnel it was necessary for the employes to drill holes, put blasts in the rock in the breast of the tunnel, and explode them; that he had been engaged for a long time in the performance of that kind of work, and well knew that sometimes such blasts would miss fire and fail to go off, and that it was sometimes difficult for the man who put in blasts to ascertain whether all the balsts' fired went off; that the danger from unexploded blasts was incident to this class of employment ; that those engaged in the work of running the tunnel assumed the risk; that he voluntarily continued his services, with full knowledge of the risk, without objection; and that, if plaintiff was injured by the negligence of any one, it was the negligence of fellow servants, for which defendant was not responsible. At the close of plaintiff’s testimony, defendant moved for a nonsuit, which was granted, and judgment entered in favor of defendant. From this judgment plaintiff appeals. 1. Counsel for appellant insists that, by the decisions of this court upon appeals from judgments of nonsuit, it is well settled that whatever the evidence tends to prove will be considered as proven, and that a judgment upon a nonsuit will not be sus — 146 — tained unless the conclusion from the facts necessarily follows, as a matter of law, that no recovery could be had in any view which could be reasonably taken from the facts which the evidence tends to prove. (Cain v. Gold Mountain M. Co., 27 Mont. 529, 71 Pac. 1004; Coleman v. Perry, 28 Mont. 1, 72 Pac. 42; Ball v. Gussenhoven, 29 Mont. 321, 74 Pac. 871; Michener v. Fransham, 29 Mont. 240, 74 Pac. 448; Nord v. Boston & Montana Consol. C. & S. Mining Co., 30 Mont. 48, 75 Pac. 681; McCabe v. Montana Central Ry. Co., 30 Mont. 323, 76 Pac. 601; Cummings v. Helena & Livingston S. & R. Co., 26 Mont. 434, 68 Pac. 852.) Under this rule, however, the record must contain competent testimony fairly tending to affirmatively prove the allegations of the complaint. The burden of proof is upon plaintiff, and is not satisfied if the conclusion to be reached from the testimony offered is merely a matter of conjecture. If such conclusion be equally consonant with the truth of the allegations, and with' some other theory or theories inconsistent therewith, it becomes a mere conjecture, and the rule of the burden of proof is not satisfied. Thus, in an ordinary case of negligence,like the one under consideration, plaintiff has the burden of proving the negligence of defendant as alleged, and also that such negligence was the proximate cause of plaintiff’s injury. If the testimony leaves either the existence of negligence of defendant, or that such negligence was the proximate cause of the injury, to conjecture, it is insufficient to establish plaintiff’s case. If the conclusion to be reached from the testimony is equally consonant with some theory inconsistent with either of the issues to be proven, it does not tend to prove them, within the meaning of the rule above announced. The use of the word “tend” does not contemplate conjecture. It contemplates that the testimony has a tendency to prove the allegations of the complaint, and not some other theory inconsistent therewith. (Patton v. Texas & Pac. Ry. Co., 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361; Deschenes v. Concord & M. Railroad, 69 N. H. 285, 46 Atl. 467; Searles v. Manhattan Ry. Co., 101 N. Y. 661, 5 N. E. 66; — 147 — Dobbins v. Brown, 119 N. Y. 188, 23 N. E. 537; Atchison, T. & S. F. R. Co. v. Alsdurf, 68 Ill. App. 149; Breen v. St. Louis Cooperage Co., 50 Mo. App. 202; Meehan v. Speirs Mfg. Co., 172 Mass. 375, 52 N. E. 518; 2 Labatt on Master and Servant, Secs. 283, 287, and notes.) Justice Brewer uses the following language in Patton v. Texas & Pac. Ry. Co., 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361: “And where the testimony leaves the matter uncertain, and shows that any one of half a dozen things may have brought about the injury, for some of which the employer is responsible, and for some of which he is not, it is not for the jury to guess between these half a dozen causes, and find that the negligence of the employer was the real cause, when there is no satisfactory foundation in the testimony for that conclusion. If the employe is unable to adduce sufficient evidence to show negligence on the part of the employer, it is only one of the many cases in which the plaintiff fails in his testimony, and no mere sympathy for the unfortunate victim of an accident justifies any departure from settled rules of proof resting upon all plaintiffs.” The record discloses no direct evidence concerning the occurrence of the accident. Adams, the injured man, died before the trial of the case, and his administrator was substituted. The evidence concerning the actual facts occurring at the time of the accident is-therefore entirely circumstantial, and the direct and proximate cause thereof is entirely a matter of inference, to be deduced from the circumstances and other facts detailed by the witnesses. We do not desire to be understood that a plaintiff may not make out a case of actionable negligence against a defendant by circumstantial evidence, but such circumstantial evidence must tend directly to establish the cause of action, and not some theory inconsistent therewith. In this case the accident is claimed to have occurred from an unexploded charge. This is possible. It is equally possible that it occurred from an unexploded piece of dynamite which had become dislodged from a loaded hole by other blasts, and inter — 148 — mingled with, the waste which it was Adams’ duty to clean up, or from the negligence of Adams himself. Many other theories of the accident present themselves, which are equally deducible from the facts disclosed by the record. Under the above authorities, this is insufficient to satisfy the rule that the burden of proof is upon plaintiff to show by competent proof that the defendant was negligent, and that the injury occurred as the proximate result of such negligence. 2. While it is a general rule that a master is bound to use reasonable diligence to provide a servant with a safe place in which to work, and to maintain such condition during the term of employment, such rule should have no application to a case when the plaintiff and his fellow servants are creating the place of work; when it is constantly being changed in character by the labor of the men working upon it; when it only.becomes dangerous by the carelessness or negligence of the workmen, or by the negligent manner in which they use the tools or materials furnished for their work; when the dangers which arise are very short-lived; or when, by the negligence of the workmen, the place is rendered unsafe without the master’s fault or knowledge. The Supreme Court of Utah, in the case of Anderson v. Daly M. Co., 16 Utah, 28, 50 Pac. 815, uses the following language: “While the employer is bound to furnish a safe place for the servant to work in, he is not bound to make it an absolutely safe place; but in a place where the nature of the business is such that Jhe conditions are continually changing by reason of the putting in and setting off of blasts, and of continuing excavations in a shaft, and thereby temporarily dangerous conditions arise, the employer cannot be held responsible therefor. * * The employer was bound to furnish a reasonably safe place and appliances with which to do the work. But where the nature of the business is extremely dangerous, and conditions are necessarily continually changing by reason of placing and setting off blasts, whereby dangerous conditions arise continually through the acts of the servant, without the knowledge of the master, the — 149 — employer cannot be held, responsible therefor without his fault.” In Davis v. Trade Dollar Cons. M. Co., 117 Fed. 122, 54 C. C. A. 636, the court says: “It is true that the law of master and servant requires that the former furnish the latter a safe place in which to work, but the master is not required to furnish the servant a safe place in which to work where the danger is temporary, and when it arises from the hazard and the progress of the work itself, and is known to the servant. The master is not required to be present at the working place at all times in person or by a representative, to protect a0 laborer from the negligence of his fellow workmen or from his own negligence in the constantly changing conditions of the work.” In Browne v. King, 100 Fed. 561, 40 C. C. A. 545, the court says: “The danger was temporary. It was danger incident to the very work plaintiff was employed to perform. Until in the progress of the work the missed shot failed to explode, there was no danger.” See, also, Mancuso v. Cataract, etc. Co., (Sup.) 34 N. Y. Supp. 273; Hussey v. Coger, 112 N. Y. 614, 20 N. E. 556, 3 L. R. A. 559, 8 Am. St. Rep. 787; Mechan v. Speirs Mfg. Co., 172 Mass. 375, 52 N. E. 518; Finlayson v. Utica M. & M. Co., 67 Fed. 507, 14 C. C. A. 492; City of Minneapolis v. Lundin, 58 Fed. 525, 7 C. C. A. 344; Wiskie v. Montello Granite Co., 111 Wis. 443, 87 N. W. 461, 87 Am. St. Rep. 885; Labatt on Master and Servant, Secs. 269, 588, 612. The cases of Shannon v. Cons. T. & P. Mining Co., 24 Wash. 119, 64 Pac. 169, and McMillan v. North Star M. Co., 32 Wash. 579, 73 Pac. 685, 98 Am. St. Rep. 908, are seemingly to the contrary, but clearly distinguishable from the case at bar, as to the facts involved. But however this may be, we are of the opinion that the rule adopted by this opinion is based upon the better reasons, and is better adapted to’ the conditions of this state, where the mining industry is of such vast importance. Any other doctrine would place the master-in the position of an in- „ surer. 3. We are of the opinion that no negligence of defendant was shown, and that no proof was offered which even tended to — 150 — show such negligence. Negligence is a breach of duty. The duty of defendant was to exercise due diligence in furnishing and maintaining a reasonably safe place in which Adams was to work. There is no evidence in the record tending to show that the tunnel was an unsafe place of itself, and it is only claimed that it became unsafe by reason of a blast left by the workmen on the preceding shift unexploded and undischarged. The negligence of defendant is claimed to exist in this case upon two theories: First, that the miners who worked in the tunnel at the point where Adams worked and was injured, during the preceding shift, prepared and loaded two holes, but did not fire them because directed not to do so by Winston, the foreman, and that such holes were left unexploded until the time of the accident, and that Adams was not notified of these facts; and, second, that an unexploded hole was left at the breast of the tunnel, and that Adams was not notified of the existence of such hole. As to the first theory. The proof presented in the record discloses the following state of facts: Roberts and Lacourcier were working in the tunnel — Lacourcier at the breast thereof, and Roberts stoping ore about ten feet back of the breast, above the roof of the tunnel; that Lacourcier had drilled and loaded ready for blasting two holes near the bottom of the tunnel, at its breast; that Roberts had stoped down ore which lay in the bottom of the tunnel adjacent to the place where the loaded holes were situated. Winston, the foreman, came into the tunnel. A conversation ensued between Roberts and Winston, whereby the attention of Winston was called to the fact that, if the holes were shot at that time, the waste arising from the shots would get mixed with the ore which Roberts had stoped down, and that Winston said that the carman (whose duty it was to remove the ore after it had been stoped down) was in the other tunnel, and ivould not be up there until after dinner. Winston then directed Lacourcier not to fire the holes. It is evident from these circumstances that the only reason Winston told Lacourcier not to fire the holes was because the waste from the blasts would become mixed with the ore that had been stoped by Roberts and — 151 — lay on the floor of the tunnel. It will be noticed that no instructions were given to Lacourcier not to fire the holes after the ore had been removed. Lacourcier did not fire tbe boles at that time, but proceeded with bis work of drilling other boles, but before tbe close of tbe shift at 6 o’clock in tbe evening Lacourcier fired three boles and Roberts fired three boles. Tbe ore which lay in the bottom of tbe tunnel when Winston directed Lacourcier not to fire tbe shots must have been removed, as tbe only object of such directions was to prevent tbe waste becoming mixed with tbe ore. Tbe result would have been tbe same by firing any of the blasts in tbe face of the tunnel. It is very evident that it was only intended by Winston, and understood by Lacourcier and Roberts, that tbe boles were not to be fired until tbe ore was removed. Roberts testifies that they fired six shots — three boles that had been drilled and loaded by Roberts, and three which bad been drilled and loaded by Lacourcier; that after lighting tbe fuses they retired some distance, and listened for tbe reports of the shots, and counted six of them. Roberts says be could distinguish tbe boles fired by himself from tbe boles fired by Lacourcier because tbe ground was softer, and be bad put in larger charges. Lacourcier and Roberts then left tbe mine, believing that all tbe boles which bad; been loaded in tbe tunnel during the shift had been fired by them. Tbe evidence discloses that Winston was not in the tunnel during tbe afternoon, and had no knowledge as to whether tbe boles which be bad directed in tbe forenoon should not be fired, bad been afterwards fired by Lacourcier. There is no evidence tending to show that defend’ ant or any of its officers or superintendent knew of tbe instructions of Winston, or bad any knowledge as to whether tbe shots were left unfired before the close of tbe shift. There was, therefore, no negligence proven against either Winston or defendant. As to tbe second theory. It is. very doubtful whether, under the complaint, tbe plaintiff can claim that any negligence is alleged except that comprehended in tbe first theory, above discussed ; but, inasmuch as tbe second theory of plaintiff is as equally unsupported by the evidence as tbe first, we will not pass — 152 — upon the sufficiency of the allegations of the complaint in that regard. The second theory is based upon the proposition that there ivas an unexploded hole near the breast of the tunnel which the defendant knew about, or by the exercise of reasonable diligence could have known about, and did not inform Adams of its existence. We cannot conceive how the defendant could have known of an unexploded hole. Neither do we believe that it Avas defendant’s duty, before alloAving the next shift to go to Avork, to investigate the conditions, and ascertain Avhether all the holes fired by Roberts and Lacourcieir had exploded. Roberts and Lacourcier Avent off shift at 6 o’clock, immediately after firing the holes. The testimony discloses that it would be unsafe for any one to go into the tunnel for some time after the explosions on account of the bad air generated by the explosions, and the danger of further explosions from parts of the charges AAdiich might not have been fully exploded. Adams Avent on shift at 7:30 in the evening. It Avas his duty to clean up the refuse in the tunnel caused by the explosions of shots fired by Lacourcier and Roberts. It Avas the usiial custom, just before the close of every shift, for the miners Avho Avorked in the tunnel to fire their shots, and it Avas the duty of the incoming shift to clean up the refuse throAvn out by such shots before going to Avork in the advancement of the tunnel. Adams knew that shots had been fired. The testimony also discloses that all the miners knew that sometimes there might be a missed hole, Avhich Avas extremely dangerous. No one knew or thought any hole had missed fire or Avas unexploded. Why any one should tell Adams that there Avas an unexploded or missed hole in the breast of the tunnel Avhen nobody believed it existed is beyond comprehension. Testimony was given to show that it Avas the custom in that mine for the miners, Avhen they Avent off shift, if there Avas a missed hole, to notify the shift succeeding them; but this Avas only in eases where the offgoing shift thought there might be a missed or undischarged' hole. If the duty existed at all to inform Adams of the conditions of the mine as left by the preceding shift, it was a duty devolving upon his felloAV servants, — 153 — which Adams knew and well understood; and, if this duty was not complied with, it was the negligence of a fellow servant, and not of the defendant. 4. Plaintiff, in his brief and argument, presents a still further proposition to the court, and that is that it became the duty of the defendant to make reasonable rules and regulations for the protection of the miners, whereby they might be notified of hidden dangers from unexploded or missed shots in the breast of the tunnel. The Supreme Court of Oregon had this question under consideration in the case of Johnson v. Portland Stone Co., 40 Oregon, 436, 67 Pac. 1013, and use the following language: “It is also claimed that the defendant was negligent in not promulgating rules by the observance of which the accident could have been avoided. There was nothing in the nature of the business in which the plaintiff was.engaged at the time of the injury which made it necessary for the defendant to make and publish rules. The mere failure to adopt rules is not proof of negligence unless it appears that the master, in the exercise of reasonable care, should have foreseen and anticipated the necessity for such precaution. It is not suggested in this case what particular rules could have been adopted that would have been likely to prevent the accident.” We agree with the doctrine thus announced. It was not shown what particular rules could have been adopted that would have been likely to prevent the accident. (See, also, Davis v. Trade Dollar Cons. M. Co., supra.) But, again, it is clearly apparent that tlie method of driving the tunnel was only a detail of the work in which Adams was engaged, and it is well established that the master is never liable for any negligence in carrying out the details of the work if the place in which the work is conducted is in itself safe, and the dangerous condition is brought about only by the negligence of the men working there. (Mancuso v. Cataract Cons. Co., (Sup.) 34 N. Y. Supp. 273; Davis v. Trade Dollar Cons. M. Co., 117 Fed. 122, 54 C. C. A. 636; Johnson v. Portland Stone Co., 40 — 154 — Oregon, 436, 67 Pac. 1013; Cullen v. Norton, 126 N. Y. 1, 26 N. E. 905.) Rehearing denied September 28, 1904. We have not considered the questions as to whether plaintiff assumed the risk of danger from unexploded blasts, or as to' whether Winston was a fellow servant or a vice principal, as neither is necessary to this decision. The unfortunate accident disclosed by the record arouses the sympathy of all, but, “in view of all the circumstances, as they appear by the evidence, the calamity seems to have been a casualty from a cause unforeseen, and not within reasonable appre* hension” (Mancuso v. Cataract Cons. Co., supra), and “no mere sympathy for the unfortunate victim of an accident justifies any departure from settled rules of proof resting upon all plaintiffs.” (Patton v. Tex. Pac. Ry. Co., supra). We therefore advise that the judgment appealed from be affirmed. Per Ouriam. — Eor the reasons stated in the foregoing opinion, the judgment is affirmed. Mr. Justice Milburn, not having heard the argument, takes no part in this decision.