169 P. 34 | Mont. | 1917
delivered the opinion of the court.
In this action plaintiff seeks to recover damages for a personal injury, alleged to have been caused by the negligence of the defendants during the course of his employment by them as a miner. The defendants were copartners, under the firm name of the “Gold Reef Lease.” They were engaged in the business of leasing and operating quartz mines in Fergus county, their
About thirty days prior to January 23, 1913, the plaintiff, :in company with W. G. Allen, also employed by defendants as a miner, was assigned work in a stope in defendants’ mine from which most of the ore had theretofore been removed. It was a large excavation, extending along the vein from west to east about twenty-eight feet. It was forty or fifty feet in height and about twenty feet in width from north to south at the widest portion of it. The north wall was in a porphyry formation. The south wall was in hard limestone. Ore was exposed in a vein in the north wall, down near the floor. In order to reach the ore in this vein it was necessary to clean up and remove from the floor a large amount of debris. The evidence does not disclose whether this debris consisted of ore or was merely waste which had been left there during the previous mining operations. Nor does it show whether it had resulted from blasting, or had fallen from above because of a process of slacking in the roof
Aside from that showing the occurrence of the fall of the rock, no evidence was introduced tending to show whether the walls, or either of them, or the roof, should, in the exercise of
“It is elementary that, when the plaintiff seeks recovery for
It is equally elementary that the proof must correspond with the allegations, and that, unless it establishes them in their general scope and meaning, the cause of action is not made out. It is true the evidence may be either direct or circumstantial, but in any event it must be sufficient to show prima facie that in fact all the elements constituting the cause of action were
The master is not an insurer of the safety of the employee;
From a memorandum opinion by the district judge accompanying the order granting the nonsuit, it appears that he entertained the view that the evidence discloses that at the time of the accident the plaintiff and Allen were engaged in creating the place in which they were at work; that under these circumstances they had assumed the risk of any injury likely to result to them, or either of them, by reason of a fall of rock caused by their operations, as one of the ordinary risks incident to the employment; and hence that the evidence failed to establish culpable negligence on the part of the defendants. Counsel insists that this view was erroneous and that for this reason plaintiff is entitled to a new trial. To support his contention, he cites, among other cases, Kelley v. Fourth of July Min. Co., 16 Mont. 484, 41 Pac. 273, Allen v. Bear Creek Coal Co., 43 Mont. 269, 115 Pac. 673, and McInness v. Republic Coal Co., 49 Mont. 112, 140 Pac. 235. It must be conceded that the theory adopted by the court was erroneous. It does not follow, however, that a new trial must be awarded for this reason. All the cases cited by counsel proceeded upon the theory that there was substantial evidence showing that the defendant employer had omitted precautions which were manifestly necessary in the exercise of ordinary care to guard the safety of the employee. As we have pointed out above, the evidence in this record does not show [4] any culpable omission by the defendants. Hence, though the reason for granting the nonsuit was erroneous, plaintiff was not prejudiced by the ruling, and therefore is not entitled' to a new trial.
The order is affirmed.
■ Affirmed.