Finalyson v. Utica Mining & Milling Co.

SANBORN, Circuit Judge, after stating the facts, delivered the opinion of the court. In granting the motion of the mining company to direct a verdict in its favor, Judge Hallett, who tried this case in the court below, declared that it was immaterial in his opinion whether the foreman was or was not a vice principal of the company, and that if he had been its president there would have been no evidence of negligence in [510] this case that would warrant a verdict against the company. We have been forced to the conclusion that this ruling was right on two .grounds: (1) Because the ordinary rule of “safe place” cannot be justly applied to this case; and (2) because there is no evidence in the case that would warrant a verdict that the company or the foreman was guilty of actionable negligence. It is tbe general rule that it is the duty of the master to exercise •ordinary care to provide a reasonably safe place in which the servant may perform his service. Railway Co. v. Jarvi, 53 Fed. 65, 3 C. C. A. 433, 10 U. S. App. 439. But this rule cannot be justly applied to cases in which the very work the servants are employed to do consists in making a dangerous place safe, or in constantly changing the character of the place for safety as the work progresses. The duty of the master does not extend to keeping such a place safe at «very moment of time as the work progresses. The servant assumes the ordinary risks and dangers of his employment that are known to him, and those that might be known to him by tbe exercise of ordinary care and foreseight. When he engages in the work of making a place that is known to be dangerous, safe, or in a work that in its progress necessarily changes the character for safety of the place in which it is performed as the work progresses, the hazard of the dangerous place and the increased hazard of the place made dangerous by the work are the ordinary and known dangers of such a place, and by bis acceptance of the employment the servant necessarily assumes them. Armour v. Hahn, 111 U. S. 313, 318, 4 Sup. Ct. 433; City of Minneapolis v. Lundin, 58 Fed. 525, 529, 7 C. C. A. 344, 19 U. S. App. 245; Railway Co. v. Jackson, 12 C. C. A. 507, 65 Fed. 48. In Armour v. Hahn, supra, the foreman of the carpenters at work upon a building in process of erection directed two of them to push a joist out to the end of timbers which rested upon and projected 16 inches beyond , the wall of tbe building. One of the carpenters in obeying this order stepped on the projecting part of one of tbe timbers, which tipped up, and he fell, and was injured. Mr. Justice Gray, in delivering the opinion of the supreme court, said: “There is no evidence tending to prove any negligence on the part of the firm of which the defendant was a member, or of their superintendent, or of the foreman of the gang of carpenters. Tbe obligation of a master to provide reasonably safe places and structures for his servants to work upon does not impose upon him the duty, as towards them, of keeping a building, which they are employed in erecting, in a safe condition at every moment of their work, so far as its safety depends upon the due performance of that work by them and their fellows.” In City of Minneapolis v. Lundin, supra, a servant was hurt while at work in the construction of a sewer, because tbe place in which he was injured had been made dangerous by tbe prosecution of the work. This court declared that: “The comparative safety of the place where each man worked was necessarily constantly varied by the progress of tbe work, and tbe duty of tbe master did not extend to keeping every place where each workman labored safe at every moment of its progress.” And in Railway Co. v. Jackson, supra, a servant was employed by a railroad company to assist in taking up and removing a railroad [511] track in the night to save the railroad from the encroachments of a flood in a river. He was injured by the stumble and fall of a co-workman over some obstruction on the surface of the ground, as they, with others, were hurriedly carrying a rail away from the dismantled track. He complained that the company was negligent in furnishing a safe place, because it bad not sufficiently lighted the place in which he was working, and had permitted the surface of the ground to he covered with unnecessary obstructions. But this court held that the doctrine of “safe place” had no application to this case, and declared that: “It frequently happens that, men are employed to tear down buildings or other structures, or to repair them after they have become insecure, or, it may be, that the work undertaken by the employé is of a kind that is calculated to render the premises or place of performance for the time being to some extent insecure. In cases such as these the servant undoubtedly assumes the increased hazard growing ont of the defective or insecure condition of the place where he is required to exercise his calling, and the doctrine above stated cannot be properly applied.” These cases warrant the instruction given by the court below. Austin and Pinalyson were engaged in sloping ont ore and timbering the space opened by tbe sloping. The Wasting necessarily made the place opened by it insecure. There was constant danger of the fall o f material loosened by the blast. The mass which fell was not visible or dangerous until the morning blast disclosed it. Not only this, but it was probably the very work of making this place safe, that Pinalyson himself performed, that was the immediate cause of the accident. The gouge had resisted the efforts of woxkmen with picks, but it was doubtless loosened from its place by tbe jarring of the foot wall apon which it rested by Pinalyson’s drilling. It was not the negligence of the company or its foreman, but the necessary progress of ibis work, that made the place dangerous, and the dangers from the fall of these loosened materials, which some one must take in order that the timber should be placed in the mine at all, Pinalyson voluntarily assumed when he entered upon this employment. The case of Railway Co. v. Jarvi, 3 C. C. A. 433, 53 Fed. 65, 70, cited by appellant, was not of this character. In that case a miner, who was working about a hundred yards from the place in which lie was injured, went out through a passageway to get a car, and was injured by a rock which fell from the roof of the slope as he was passing under it. It was necessary for him to pass under this roof to get his cars and to go to and from Ms work. The railway company knew that this roof was composed of treacherous rock, and that it was a roof that might possibly fall and that needed watching. The only way such a roof could be properly tested was by sounding it with the hand or with a pick or cane, and there was no evidence that this roof had been so tested for weeks. Upon this state of facts this court held that there was some evidence of negligence on the part of the company, and applied to the case the rule of “safe place.” Bui the roof which fell in that case had long been completed by the rail way company, and was furnished to Jarvi as a safe cover for a way through which Ms duties required him to pass. He had no work to perform in making it safe, or in changing the character for safety in [512] which the company furnished and maintained it. On the other hand, in the case at bar Austin and Finalyson were engaged in removing ore from the breast of the stope, and in making the place from which it was removed safe for subsequent work. The very timbering upon which Finalyson was engaged was the work of making a place safe that was necessarily made dangerous by the progress of the work. The complaint in this case is that the master was negligent because it did not, before Finalyson commenced to timber, safely timber and make safe a place necessarily made dangerous by the prbgress of the work, which it had employed Finalyson himself and his fellow servants to make safe. In other words, the complaint is that the master was negligent because it did not render unnecessary the work it employed the servant to do, before he commenced to do it. The distinction between this and the Jarvi Case is marked and clear, and in our opinion it brings it squarely within the other class of cases to which we have already referred. • There is another reason wrky this case is not ruled by the Jarvi Case, and it is that this record discloses no evidence of negligence of the company or its foreman that would warrant a verdict. The negligence which charged the railway company in the Jarvi Case was its failure to inspect and sound with the hand or with a pick or cane the roof of a finished way through which its employés were constantly passing. There was no such negligence in the case at bar. Both the foreman and the man who was engaged in blasting tested with a pick the mass which fell upon Finalyson, and strove vigorously but in vain to bring it down, within an hour of the accident that befell him. It is only an injury that could have been foreseen and reasonably anticipated as the natural and probable result of an act of negligence that is actionable. Railway Co. v. Elliott, 5 C. C. A. 347, 55 Fed. 949; Railway Co. v. Kellogg, 94 U. S. 469; Hoag v. Railroad Co., 85 Pa. St. 293, 298, 299. Who that had tried with a pick to break off from the foot wall and bring down this 1,200 pounds of earth, and had tried in vain, could have reasonably anticipated that it would fall of its own weight within an hour? It is true that one witness, Austin, says that he was not satisfied with the trial, and thought it might fall at any time, but he testifies that he did not after the trial make this statement to the foreman nor to Finalyson. The following is a portion of his cross-examination : “Q. From tlie time you went there, one o’clock to two o’clock, what were you doing? A. I was picking down the shot. Q. Trying to get this mass down, and did not succeed? A. Yes; and Mr. Talbert. Q. How long did Mr. Talbert work at it trying to get it down? A. A minuto or so. Q. And could he get it down? A. No, sir. Q. What did Mr. Talbert say about it, now? A. He says, ‘There is lots of time; if we shoot that we lose this smelting ore that is alongside of it.’ Q. What else? A. Then we started. Q. I mean is that all he said then? A. That is all he said then. Q. Didn’t you and he discuss the question whether it was likely to fall or not? A. No, sir.- Q. Nothing said about it? A. No, sir; not to my knowledge. Q. After you had tried it that way, you were both satisfied it was not likely to fall, was not you? A. No, sir; I was not satisfied, because I thought it might fall any time. Q. Did you think it was dangerous, and likely to fall then? A. Yes, sir; if I did not I would not want to put this hole in. Q. You went and sat right [513] down where it could fall on your body? A. Yes, sir; afterwards. Q. Although you thought at that time, it was liable to fall any time? A. I was not sitting. Q. You say there was not anything said between you it was no!; likely to fall after you tried it? A. No, sir; not to my knowledge. Q. You wont and stood where it could fall on your body, and Talbert went and stood where it could fall on him, didn’t he? A. Yes, sir.” Actions speak louder and more truthfully than words, and the acts of Austin and the foreman conclusively prove to our minds that they did not anticipate any such result as ihe fall of this mass of earth. They stationed themselves at work opposite and beneath it, so that if it fell it must strike their bodies, unless they could fortunately jump from under it. Finalyson evidently did not anticipate its fall, if he had, he would not have seated himself beneath it to drill a hole that was aside from it, and that he might have drilled as well from its opposite side, where the falling mass could not have struck Mm. After a careful perusal of all the evidence in this case, we are of the opinion that there is none here that would sustain a verdict that this company or the foreman was guilty of any negligence that a man of ordinary prudence could have reasonably anticipated would result in this injury. The judgment below is affirmed, with costs.