Davis v. Trade Dollar Consol. Min. Co.

GILBERT, Circuit Judge, after stating the case as above, delivered the opinion of the court. We think the ruling of the trial court was clearly correct. Not only was the foreman of the shift of men who retired from the tunnel just before the shift to which the plaintiff in error belonged went in to work a fellow servant with all the members of that shift, within the doctrine of Mining Co. v. Whelan, 168 U. S. 86, 18 Sup. Ct. 40, 42 L. Ed. 390, and Railroad Co. v. Conroy, 175 U. S. 323, 20 Sup. Ct. 85, 44 L. Ed. 181, but we think the evidence upon which the plaintiff in error rested his case falls short of showing that the foreman of the preceding shift was negligent. The complaint does not charge that the plaintiff in error was misinformed as to the location of the unexploded shots, but that he was not informed as to the number thereof. He did not allege, nor did he offer to prove, that there were more than two blasts remaining unexploded when he went in to work upon the tunnel. In fact it was conceded that there were but two. The mistake which the foreman of the retiring shift made was in supposing that the second of the unexploded blasts was at the bottom of the tunnel, instead of at the breast thereof. It is evident from the testimony, however,—and the plaintiff in error must have so understood it,—that the foreman located the position of the unexploded blasts solely by the sound of the explosions; a method which was uncertain, as the plaintiff in error must have known. The rules of ordinary prudence required the plaintiff in error to require some [124] member of his shift before beginning to drill to make examination of the face of the tunnel, and discover the location of the unexploded blasts, and the evidence shows that the plaintiff in error himself made the examination. The foreman of the retiring shift did not pretend to say that he had made such examination. He stated to the incoming shift what he had heard, not what he had seen. ■ It is reasonable to say that the information he imparted was for the purpose of directing the attention of the incoming shift, first, to the number of unexploded blasts, and, second, to the places where he thought they would be found. The plaintiff in error, while making his examination, did not take the trouble to remove the débris at the bottom of the tunnel, which débris he erroneously supposed concealed an unexploded hole. If he had done so, he would have found that the hole had exploded with the others, and his attention would thereby have been sharply directed to the fact that there yet remained an unfired shot, which must be located before beginning his work. Error is assigned to the ruling of the court in refusing to permit a witness to testify what, in his judgment as a miner, was the proper course to adopt in tunnels to protect the men at work against the danger of explosion of missed holes, and in excluding testimony as to the custom and habit in tunnels in that regard. There was no issue made in the pleadings to which the evidence so offered was pertinent. In the complaint it was sought to charge the defendant in error with liability for the injury which the plaintiff in error sustained by averring that the defendant in error could, by the exercise of ordinary care and prudence, have ascertained whether all the holes had exploded, and that it did in fact know that two of the holes had failed to explode, which fact the plaintiff in error had no means of knowing, and that the defendant in error was negligent in failing to give him information thereof. The evidence of the plaintiff in error contradicts some of these averments. It shows that the defendant in error did not know that some of the holes had not exploded, unless, indeed, such knowledge was imputable to it from the knowledge which the foreman of the preceding shift had; and, if it be assumed that his knowledge was the knowledge of the company, then it is not true that the plaintiff in error did not have all the knowledge upon the subject which the defendant in error possessed, for he was informed that two of the holes had not exploded. 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 a laborer from the negligence of hís fellow workmen or from his own negligence in the constantly changing conditions of the work. The plaintiff in error, while working in the tunnel, had full knowledge of the danger from unexploded blasts, and of all the means which were being employed to protect him therefrom. He assumed the risk of any defect, if defect there were, in the means used to detect the danger. The danger from a missed blast [125] was a danger incident to the work. City of Minneapolis v. Eundin, 7 C. C. A. 344, 58 Fed. 525, 19 U. S. App. 245; Brown v. King, 40 C. C. A. 545, 100 Fed. 561; Armour v. Hahn, 111 U. S. 313, 4 Sup. Ct. 433, 28 L. Ed. 440; Bunt v. Mining Co., 138 U. S. 483, 11 Sup. Ct. 464, 34 L. Ed. 1031. We find no error in the rulings of the circuit court. The judgment is affirmed. Footnotes [¶] 1. Who are fellow servants, see notes to Railroad Co. v. Smith, 8 C. C. A. 668; Railway Co. v. Johnston, 9 C. C. A. 596; Flippin v. Kimball, 31 C. C. A. 286. [¶] 3. Assumption of risks incident to employment, see note to Railroad Co. v. Hennessey, 38 C. C. A. 314. See Master and Servant, vol. 34, Cent. Dig. §§ 583, 584.