Frank v. Bullion Beck & Champion Mining Co.

Mc Carty, District Judge, after stating the facts, delivered the opinion of the court. Respondent insists that the plaintiff, having voluntarily left his work and gone to the scene of the accident, [42] tbe act was bis own, and that he assumed the extra hazards and dangers to which he thus exposed himself, and therefore can not recover. As a general rule, when the servant voluntarily leaves his post of duty, and places himself outside of the scope of his employment, and while not in the discharge of any duty he owes to the master, incurs risks and dangers that he could have avoided by remaining where the duties of his employment required him to be, and is injured while thus off duty, the master is not liable. We do not think, however, that the case at bar comes within the rule to the extent that a court would be authorized in holding as a question of law that the plaintiff when he left his work, on hearing the crash or noise, did anything more than any prudent man of ordinary caution and discretion would have done under the same or similar circumstances. Therefore, we are not prepared to say that the plaintiff, when he left his work to ascertain the locality and magnitude of the cave, violated any duty he owed to the defendant, especially in view of the fact that he was 800 feet underground at work mining, a class of work attended with many risks and dangers. And in view of the further fact that it is a matter of common knowledge that accidents resulting from the caving in of mines, or portions thereof, are not of uncommon occurrence in the mining regions. A miner’s safety, in fact his very existence, and that of his co-employees, and the safety of the mine, in case of a cave, might depend upon prompt action on his part. And for him to remain at work without investigating, after hearing or being advised of a cave of the magnitude of the one under consideration, might, as the result of the delay, permit every avenue of egress from the mine to be cut off and himself and co-employees imprisoned hundreds of feet [43] under ground, beyond all reach of human assistance. No fixed or uniform rule, however, can be laid down by a court to determine what act or series of acts would constitute contributory negligence on the part of the servant, when without any fault on his part he is placed in great peril on account of a cave, fire, or other casualty in a mine in which he' is at work. These questions can not be decided by the application of purely legal principles. Each ease must necessarily be determined upon the particular facts, circumstances, and conditions surrounding it. What would be regarded as a wise course to pursue, or thing to do, by the servant under certain circumstances, might under different or other circumstances and conditions be held the worst of negligence. There is some evidence in the record which tends to prove negligence on the • part of the defendent on account of its failure to properly timber that part of the mine where plaintiff and Sullivan were at work. The record shows that the cave might have been prevented by the placing of temporary props between the top of the square sets of timbers and the roof of the stope where the cave occurred. The evidence also tends to show that this is the usual method of guarding against accidents of this character, when the permanent sets of timbers do not come in contact with and support the roof. These are questions of fact that we think should have been submitted to the jury. The controlling question, however, in this case is, Was it contributory negligence on the part of the plaintiff in obeying Brant, the shift boss, when he ordered plaintiff into the place of danger where he received the injuries complained of? The plaintiff, when he arrived at the scene of the accident, found Brant giving orders and directions to the men who were endeavoring to extricate [44] Sullivan from the rocks and debris, and carry him to a place of safety. Brant, without making any explanation whatever of the extra hazards and risks, ordered plaintiff to go down to where Sullivan was lying and help carry him out. This was a service that was clearly outside of the scope of the plaintiff’s employment. Brant being there at the scene of the accident, prior to plantiff, had a better opportunity to understand and appreciate the perils and dangers than plaintiff, who thereby was justified in relying on the superior knowledge of Brant, unless the dangers and risks were visible and could be readily seen and understood, and were of such a nature that an ordinarily prudent man, under the same or similar circumstances would readily see and understand without first having them explained and pointed out to him, and understanding would not encounter them, even at the risk of being dismissed from his employment upon refusing to obey. Linderberg v. Mining Co., 9 Utah, 168; Dallemand v. Saalfeldt, 51 N. E., 645 After taking into consideration all the facts, circumstances, and appearances as they existed when plaintiff first came upon the scene of the accident, also, that the life of a co-laborer was in imminent peril, it is a fact for the jury to determine as to whether or not plaintiff, before and at the time of obeying Brant’s orders, knew or ought to have known and realized the extent of the danger.to which he was exposing himself. Bailey on Mast. Liabil., p. 172; Wilson v. Mining Co. (Utah), 52 Pac., 626. The question of negligence on the part of the defendant and contributory negligence on the part of the plaintiff are questions of fact that should have been submitted to the jury. Wright v. So. Pac. Ry. Co., 14 Utah, 383; Reese v. Mining Co. (Utah), 49 Pac. Kep., 295, and cases cited. [45] We think the court erred in sustaining defendant’s motion for a non-suit, for the reasons stated, and for the additional reason that the motion is too general, and does not specify the grounds upon which it is based. We are of the opinion, and so hold, that a party moving for a non-suit ought to be required to specifically state the grounds upon which he bases his motion, and thereby call the court’s attention and that of the opposite party to the point on which he relies. The California Code contains a provision on this subject, which is similar to that of our own State. Deering’s Civil Code, Sec. 581. The Supreme Court of that State has held in a number of well-considered cases that a motion for a non-suit, made in general terms, such as the one under consideration, is not suf-cient to authorize a court to dismiss the action. Poehlman v. Kennedy, 48 Cal., 201; Coffey v. Greenfield, 62 Cal., 602, and cases cited; Belcher v. Murphy, 81 Cal., 39; Palmer v. Marysvalle Dem. Pub. Co., 90 Cal., 168; Jacobs et al. v. Mercantile Co., 17 Mont., 61. The case is reversed, with directions to the trial court to set aside the judgment of dismissal, and to grant a new trial. The costs of this appeal to be taxed against the respondent. BaRtch, C. J., and Basein, J., concur