114 Mich. 375 | Mich. | 1897
Lead Opinion
Plaintiff’s intestate was a miner in the employ of the defendant, a corporation owning and operating a copper, mine in the Upper Peninsula. The hanging walls of the mine were of such a character that they would crack suddenly and fall away if left exposed to the air even for a short time; so that, to safely carry on the work, it became necessary to place batteries of stull timbers, extending from the foot to the hanging wall, about eight feet apart, each battery consisting of three timbers. About 11 o’clock in the forenoon of the day before plaintiff’s intestate, Nicholas J. Andrews, was killed, one Thomas Maslin, the underground captain of defendant’s mine (having charge of all the underground work),, while on his daily tour of inspection through the mine, ordered two of the miners, named Weisonen and Kemp
Plaintiff’s intestate had been in the employ of the defendant about two weeks at this time, as a hitch cutter. He had previously worked in this same mine, and knew the character of its formation, and the duties of a hitch cutter, which were to cut holes in the foot wall for the timbers to set in to support the hanging wall. The holes or hitches were cut to prevent the lower ends of the timbers, which extended obliquely from the foot to the hanging wall, from slipping. On the morning when Andrews was killed, he and his partner (these hitch cutters work in couples), one Trevarrow, were ordered into that level to cut hitches for the timbers. The miners were drilling the third hole in the overhanging wall when Andrews and his partner arrived. The miners, before commencing their work that, morning, had tried the ground or rock •above, using two iron bars at a time for that purpose, but could not move it. The timber gang of four men was also there, having gone with Andrews and his partner, and they spent from an hour to an hour and a half taking •down some loose rock; and they, too, tried this particular piece of ground, using three bars at a time, but could make no impression on it. Andrews and his partner stood all this time looking on, in full view of and observing the work, the .place being lighted so that the rock and the working could be seen. After the loose rock had been barred down and the particular piece of rock had been tried, all seemed to consider the place safe; and Andrews and his partner, without making any further or other examina
The first count of the declaration, after charging the duty of the defendant, alleges, in substance, that the defendant negligently failed to keep and maintain the said drifts, crosscuts, stopes, and chambers in and about its said mine in reasonably safe condition, etc., and negligently failed to properly timber the said drifts, etc., so as to secure and prevent any pieces that might become loosened in the roof of such drifts, stopes, crosscuts, and chambers from falling, etc., and negligently failed, after it had come to its knowledge that such stopes, etc., had become unsafe, to warn the said Andrews and others of its said employés working therein of the dangerous condition thereof, and that, by reason of the negligence and failure-on the part of said defendant to discharge .such duties in the premises as aforesaid, the said Andrews, while in the course of his employment, etc.; was killed, etc.
On the trial the plaintiff called the coroner of the county, who testified that Captain Maslin was sworn .before him as a witness in the inquest held upon the body of Nicholas J. Andrews. The record returned here states what then took place, as follows:
“Counsel for plaintiff here attempted to prove by this witness the testimony of Captain Maslin given befoi’e him as coroner upon the inquest, for the purpose of proving an admission of Captain Maslin adverse to the interests of the defendant. Counsel for defendant objected to this as immaterial and incompetent; that it could only be proper for one purpose, viz., to impeach Captain Maslin, who had not yet been on the stand. Counsel for plaintiff announced that he did not intend to impeach Captain Maslin at all.
*379 “ The Court: The court holds that it is not necessary at all, in order to show how this accident occurred, for Captain Maslin to be called; for the plaintiff can show by admissions of the defendant just how it occurred, and put the defense upon its showing that it occurred some other way. I think it is clearly admissible, — the proceedings at the coroner’s inquest, — to determine the cause of this man’s death, and I think that whatever Captain Maslin may have sworn to there is admissible here. I don’t think this witness can read that over, and say that it is substantially what he swore to, but whatever he said must be produced.”
This deposition was read in evidence, and is as follows:
“I am underground captain of the Tamarack mine. I gave the miners Weisonen and Kempanen express orders yesterday to put three holes in the ground, and to blast it down, as I did not .consider it safe. These men, for reasons of their own, did not do so. Had they obeyed my orders, the accident would not have happened.”
The court was in error in permitting this deposition to be read. It was not offered for the purpose of impeaching Captain Maslin, but for the purpose of proving a substantive fact; that is, that Maslin knew the mine was in a dangerous condition when he ordered the men in there. It is conceded that it was no part of the res gestee. It has many times been held by this court that the declara-tions of an agent as to a past transaction are inadmissible to bind the principal. Michigan Cent. R. Co. v. Coleman, 28 Mich. 440; Mobley v. Kittleberger, 37 Mich. 360; Patterson v. Railway Co., 54 Mich. 91; Stebbins v. Township of Keene, 55 Mich. 552; Wormsdorf v. Railway Co., 75 Mich. 472 (13 Am. St. Rep. 453). It is true that, where the acts of the agent will bind the principal, then his representations, declarations, and admissions respecting the subject-matter will also bind him, if made at the same time, and constituting a part of the res gestee.
But counsel for plaintiff contend that Captain Maslin was the alter ego of defendant, and that his agency continued at the time his testimony was given before the coroner; therefore, whatever Maslin said in reference
But counsel contend that the deposition could not have injuriously affected the defendant, as Captain Maslin was subsequently called as a witness on the trial, and testified substantially as he did before the coroner. We do not find anything in the testimony of Captain Maslin to sustain this contention. On the other hand, he testified that on the day before the accident he was in the mine, and ordered the men to blast down the ground in the hanging, and he adds:
“I did not find a particle of danger in that ground, nor did I see anything to lead me to believe it was dangerous. My object in taking it down was to put timbers in there.”
His attention was called to the testimony taken before the coroner, as written down by the coroner, and he stated, “Well, my meaning was not as it is construed in that paper;” and he states positively that he did not testify as the coroner had written it down. On cross-examination he stated that he did not warn Andrews and his partner not to go there until the overhanging rock was blasted down; that it was not necessary to do that, as they were warned every day. He was asked:
“ Now, when you knew that it was unsafe, and you concluded that it was not safe to mine further without calling their attention to it, without having the hanging wall taken down,why didn’t you warn them then?
“A. I didn’t know it was unsafe then.
*381 “Q. When you concluded it wouldn’t be well to mine further without taking that hanging down, — this portion you speak of, — why didn’t you warn the men ?
“A. Because it was not necessary; it was not dangerous.”
From this testimony it is apparent that Captain Maslin did not testify upon the trial as contended by counsel, but that he did state positively and unequivocally that he did not regard the place as dangerous, and that the error in permitting the coroner to read the testimony taken before him was not cured.
But counsel for plaintiff contend that the place was made dangerous by the excavation’s being worked too far under, and left too long a time, without putting in the sets of stull timbers, as was usual; that this was done under the direction of Captain Maslin, who knew that if too great excavation was made, and the timbers not at once placed, the hanging walls, being left exposed, would crumble or break off and fall; that he, knowing this, sent the men in without warning them of the dangerous condition. We think there is some evidence to sustain this contention. Mr. Parnall, the superintendent of the mine, testified that ofttimes when the overhanging wall appeared safe it would suddenly break off and fall, and this within the space of a few minutes. It was also shown that, when the excavation had been carried forward, the stull timbers were put in every seven or eight feet; that is, three timbers, near together, set in the hitches cut in the foot wall, and reaching to the overhanging wall. There is some evidence that, on the morning in question, the excavation had been carried so far under that there was room for two and perhaps three sets of stull timbers'. While the evidence is not very clear upon this question, we are not able to say that there is no evidence of that fact. If the place was unsafe without the stalls being placed every seven or eight feet, it was the duty of the defendant to so place them, as it was its duty to furnish Andrews a safe place to work. These questions were for the determination of the jury. But at the same time the
Under the method adopted by the defendant company, these hitch cutters were required in all cases to examine all places where they might go to work, and see and satisfy themselves that such places were safe, before beginning their work, and they were frequently cautioned and warned as to this duty, and that they must never, under any circumstances, work under overhanging ground without first examining it, and being satisfied that it was all right, and, if found dangerous, to make or have it made safe; and they were allowed to take all the time and-have ail the assistance necessary for that purpose, and they understood and knew that no one would go ahead of them for that purpose, but that that was one of their particular duties. And the court should have directed the attention of the jury to those facts.
For the errors pointed out, the judgment must be reversed, and a new trial ordered.
Concurrence Opinion
(1) It has been for some years the universal practice and policy of the defendant to employ only experienced miners as hitch cutters, because it is important that men so employed should be able to detei’mine for themselves the safety of the place.
*383 (2) The deceased and Trevarrow, his companion, were ■competent and experienced miners.
(3) It was the duty of all hitch cutters to examine the surroundings before proceeding to work, and, if they saw any rock which in their judgment was dangerous, to remove it before proceeding to cut the hitches, and, if they were unable to do so, to procure assistance.
(4) The deceased and Trevarrow went to work after they had made an examination, and had determined for themselves that the situation was safe.
(5) The miners who were engaged in drilling had examined it before going to' work that morning, and tried to get the rock down with two iron bars, but could not move it. Four men, comprising the timber gang, were also there; and they used three iron bars in attempting to remove the rock, but could make no impression upon it.
(6) During the time that these examinations and attempts to take down the rock were being made, the deceased and Trevarrow were close by, looking on. It thus appears that eight experienced miners had examined the situation and pronounced it safe, and in that belief had gone to work.
(7) These men were all experienced and competent miners, and familiar with the character of the rock in the defendant’s mine. They were as competent to judge of the danger as was Captain Maslin, who was not present when the examination was made.
The situation, in brief, is this: These men were authorized and were expected to judge for themselves as to the safety of the place. They were competent to do so. They had been cautioned against working in dangerous places. They placed no reliance upon the judgment of any other employé, officer or man, but used their own judgment. They were at liberty to withdraw if they considered the place dangerous. I am not aware of any decision in this court or any other which holds the master liable under such a state of facts. It is repugnant to common justice. Captain Maslin had not instructed them to go to work in this place if they considered it dangerous. He had instructed the drillers the day before to drill in three holes to blast down this hanging rock. He had also instructed the hitch cutters and timbermen to perform
11 Mr. Riley: Why do I say so? Because, sir, you, on your solemn oath, before your God, have told me, what ?*385 That you dare not, in the presence of high Heaven, raise your hand and return a fair and impartial verdict in this case. Why ?
“Mr. Gray: I except to that, your honor.
“Mr. Riley: Why did you swear so? Because, forsooth, your sister-in-law, employed by this Tamarack Mining Company, if you did return a verdict as your heart and. your conscience should direct, would discharge her from their employ.
“The Court: Mr. Riley, that is not a proper remark to the jury. You have not exhausted your challenges to the jury. It was your duty to take him off.
“A Juror: Your honor, I would rather have Mr. Riley leave that out altogether.
“ The Court: It is not called for. It is unprofessional. That juror was accepted by you as satisfactory.
‘ ‘Mr. Gray: He was excused, and then Mr. Riley insisted upon his coming back into the box.
“Mr. Riley: All that is admitted, but the facts remain; but I shall not discuss them further.”
There is nothing in this record to justify the use of such language, and it was properly condemned by the trial judge as unprofessional. What effect it had upon the jury, we cannot tell; but something induced them to render an extravagant verdict for the plaintiff, of over $12,000, the interest of which would alone be more than the annual earnings of the deceased, assuming that he worked every working day in the year. His pay was $2 per day, and the interest on the amount of the verdict would exceed $2.50 per day, leaving the principal untouched. This would result in giving his family more pecuniary benefit than they could possibly receive if he were living. Such conduct in the trial of lawsuits has been so often condemned by the courts that it seems almost incredible that attorneys of reputable standing should still indulge in the practice.