Kallio v. Northwestern Improvement Co.

MR. JUSTICE SANNER delivered the opinion of the court. On July 12, 1911, the appellant was employed by respondent company as a coal miner in what is known as “west 5 entry, No. 2 vein, east side mine,” at Red Lodge. While loading coal — 320 — into a car in the course of his employment, a large piece of coal, which had without his knowledge become loose in the roof or walls of the entry, fell upon and seriously injured him; hence this action. He grounds his right to recover upon the allegations that an inspection and sounding of the roof and walls would have disclosed the presence of the loose coal; that it was the duty of respondents to inspect the roof and walls of the entry, and if any loose rock or coal existed to remove the same, and to timber such places along said entry where such timbering was necessary to prevent rock or coal from falling, and that such duty the respondents negligently failed to observe. In the answer it is alleged that the coal which the appellant was loading at the time he was injured was coal that shortly before had been blasted and broken from the face of the entry in the usual and customary manner; that he was loading the coal from the place where it had fallen and had been deposited by the force of the blast; and that, under the terms and conditions of his employment as a coal miner, it was his duty, and he was required, to look after and safeguard his own working place and see that it was in a reasonably safe condition; that he was required to provide for his own safety against the danger and risk from the falling of the roof and walls of the entry at his working place; that he failed to take precautions for his own safety and carelessly failed to examine the walls and roof to ascertain whether the same were safe and free from loose rock and coal liable to fall; and that the injuries received were due to his own fault. In the reply it was admitted that the coal the appellant was loading at the time he was injured had shortly before been blasted in the usual and customary manner, and that he was loading this coal from the place where it had been deposited by the force of the blast. He denied that it was his duty to look after the safety of the place where he was injured, or that his injuries were due to his own fault. Upon the trial it was either admitted or established that the accident occurred at a point seventy or seventy-five feet from the face of the entry, at a place where and at a time when appellant and his associate were loading the coal blasted out by — 321 — the preceding shift; that they had just come on shift, and this work was part of their duty as miners; that they had inspected the entry for a distance of fifty feet from the face but no further; that the appellant could not tell without an inspection by sounding that the piece of coal which fell upon him was loose and likely to fall, but its presence and character would have been revealed through an inspection by sounding so that it could be picked down; no such sounding was done by either appellant or respondents; that blasting affects the roof and walls of the entry for not to exceed ten feet from the face, but loosening of the walls and roof is accomplished by the action of air to which this portion of the entry in question had been exposed for nearly a month; that as the result of the accident appellant sustained serious injuries. Appellant also sought to show the existence of an agreement, rule or custom by which the miners were to examine and keep safe the entry for a distance of fifty feet from the face, and the company to do likewise beyond that point; but this the trial court would not permit, being of the opinion that by Chapter 120, Twelfth Session Laws, called the “Coal Mining Code,” the duty is imposed upon the miner to examine and keep safe his own working place; that his “working place, ’ ’ within the meaning of section 83 of that Act, is wherever as miner he is required to mine or load; and that the existence of any rule, custom or agreement in derogation of this duty is immaterial. In further expression of these views, the plaintiff was nonsuited, and error is assigned accordingly. 1. At the common law the rule undoubtedly is that it is incumbent upon the master to exercise ordinary care and diligence to provide his employee with a reasonably safe place in which to work; and the employee is justified in assuming this duty to have been performed, so that, though bound to observe and [1] protect himself against such dangers as are open and obvious to his senses, he is not required to stop, examine, and experiment for himself to see if the place assigned to him is a safe one. (Allen v. Bear Greek Coal Co., 43 Mont. 269, 115 Pac. 673; Schroder v. Montana Iron Works, 38 Mont. 474, 100 Pac. 619.) This rule does not obtain “when the plaintiff and his — 322 — 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” (Shaw v. New Year G. Min. Co., 31 Mont. 138, 77 Pac. 515; Thurman v. Pittsburg & Mont. Co., 41 Mont. 141, 108 Pac. 588) ; but it does obtain where the place is a completed one, as, for instance, that part of a mine tunnel which is behind the miner engaged in driving it (Kelley v. Fourth of July Min. Co., 16 Mont. 484, 41 Pac. 273). The argument is that, since these rules apply as well to a coal mine as to any other place of employment (Allen v. Bear Creek Coal Co., supra; Tennessee Coal etc. Co. v. Garrett, 140 Ala. 563, 37 South. 355; Central Coal & Coke Co. v. Williams, 173 Fed. 337, 97 C. C. A. 597; McKenzie v. North Coast Colliery Co., 55 Wash. 495, 28 L. R. A. (n. s.) 1244, 104 Pac. 801), iand since under them the appellant could have recovered, he should still be allowed to recover because the Coal Mining Act, by failing to define what the “working place” is which the miner must examine and keep safe, must be presumed to mean the working place as understood at common law. We do not know of any precedent or principle by which the [2] working place of a coal miner, which at common law he must keep safe, is precisely defined; but if the working place as understood at common law is’ merely the face of the entry or that portion of the entry the walls or roof of which might be affected by blasting, then we think a specific modification in that regard is indicated by section 83 of the Coal Mining Act (Laws 1911, Chap. 120), as follows: “Bach miner shall examine his working place upon entering the same and shall not commence to mine or load until it is made safe. He shall be very careful to keep his working place in safe condition at all times. Should he at any time find his place becoming dangerous from any cause or condition, to such an extent that he is unable to take care of the same personally, he shall at once cease work and notify the mine foreman. * * * ” In passing, we may add that by section 103 of the same Act penalties are provided for its violation, including violations by miners of section 83. The plain — 323 — meaning of section 83, as it seems to us, is that before he goes to work the miner must examine the place where his work is to be done; if he is about to mine, he must examine the place where his mining is to occur; if he is about to load, he must examine that part of the workings throughout which the duty of loading is to be performed. "While he is at work he must keep safe the place where he is working, and whenever he finds it unsafe, whether as the result of his operations or otherwise, he must make it safe, or, if he cannot do that, he must quit the work and report. It is thus apparent that the “working place” which the miner must under the statute examine and keep safe is a varying area, and that the duty imposed is a positive one. The suggestion is made that this cannot be so, because the Act by its section 70 requires the master to see that “all loose coal, slate and rock overhead in rib in traveling ways, where miners have to travel to or from their work,” are taken down or carefully secured, and by its section 73 requires the foreman or his assistant to visit and examine every working place at least each alternate day and see to the security of the same. The conclusion does not follow; rather the clear intent of the statute is that [3] such places as are the seat of active operations shall, be looked .after by both master and servant, and the mere fact that at a given time one of such places may not be the seat of active operations, and may therefore at such time be subject to the exclusive inspection of the master, does not absolve the employee from the duty of examination when that place is, or is about to become, the scene of his labors. As to the place at which the appellant was injured, the respondents should have seen to its safety; but it was also the duty of the appellant to refrain from loading until he had examined it and had made it safe. Neither party having observed the statutory duty, and [4] the accident being due to this nonobservance, the parties were in pari delicto, and the ease is squarely within the reasoning of Melville v. Butte-Balaklava C. Co., 47 Mont. 1, 130 Pac. 441, in which, under analogous circumstances, the right to recover was denied. (See, also, White on Personal Injuries in — 324 — Mines, sec. 354; Thompson on Negligence, sec. 204; Young v. Chicago, M. & St. P. Ry. Co., 100 Iowa, 357, 69 N. W. 682.) 2. No difficulty is met in the ascertainment of the intent with which the Act was passed — the evil sought to be remedied, the [5] good to be attained. Every section speaks the legislative realization of the hazards of coal mining — hazards which may involve not only the loss of valuable lives, but other consequences of grave import to society, and which, in the interest of the employee, the employer, and the public, it is imperative to reduce. Can such an Act, can provisions therein imposing duties designed to accomplish such a purpose, be nullified by private agreement, private rule, or private custom? The answer is given in Edwards’ Admr. v. Lam, 132 Ely. 32, 119 S. W. 175, the very ease relied on by appellant to support his contention. In that case the effect of an agreement between the employer and employees, which was not in derogation of the statute, was involved, and touching it the court said: ‘ ‘ The duty of the mine owner, independent of statutory regulation and that primary duty to furnish a reasonably safe place in which to work, may vary according to the contract between him and his laborers. * * * If the employer and laborers all agree that the latter are to be of the' same or a common grade, and shall have control themselves of certain features in the work, designed for their better protection, we are unable to see wherein the arrangement is illegal, so long as the public policy and thé statutes are not violated.” But that the plain provisions and clear purpose of a statute may not be set at naught by agreemerit, rule, or custom is too well settled for discussion. (Chicago & E. R. Co. v. Lawrence, 169 Ind. 319, 79 N. E. 363, 82 N. E. 768; Voshefskey v. Hillside C. & I. Co., 21 App. Div. 168, 47 N. Y. Supp. 386; Young v. Chicago, M. & St. P. Ry. Co., supra; Smith v. Milwaukee B. & T. Exchange, 91 Wis. 360, 51 Am. St. Rep. 912, 30 L. R. A. 504, 64 N. W. 1041; Little v. Southern Ry. Co., 120 Ga. 347, 102 Am. St. Rep. 104, 66 L. R. A. 509, 47 S. E. 953; Missouri, K. & T. R. Co. v. Roberts (Tex. Civ. App.), 46 S. W. 270.) — 325 — The district court was clearly correct in both the positions taken, and the order of nonsuit necessarily followed. The judgment appealed) from is therefore affirmed.' Affirmed. Mr. Chief Justice Brantly and Mr. Justice Holloway concur.