49 Minn. 511 | Minn. | 1892
This was an action brought to recover damages for an injury received by plaintiff through the negligence, it was alleged, of defendant corporation, engaged in iron mining. It had put into its mine an east and west drift 4 feet wide and 6 feet iii height, about 15 feet above the tramway which ran from one main shaft to the other. From this tramway, which was timbered upon sides and roof, there had been opened upward to the drift a “raise” about five feet square, fitted at the bottom with a plank chute or spout, the lower end of which' was one or two feet below the roof of the tramway. This raise was for the ordinary use of such openings. As the drifts are worked or extended, the ore, or “dirt,” as it is always called, is shoveled or wheeled to the mouth of the raise, and dropped through it into the chute or spout below. A board at the lower end of the chute retains the dirt, but when pulled out by men called “trammers,” who run the ears in the tramway, it drops down into them, and is conveyed to the main shafts for removal to the surface. As the dirt is moist, it frequently adheres to the sides of the chute; and it is the duty of the miners, at the end of their “shifts,” or day’s work, to clean down the sides of those they may have been using, and as the trammers place their cars underneath the chutes, and call for dirt, it is the business of the miners above to respond to the calls.
Plaintiff and his brother had worked together for defendant about four days when the accident occurred; the former drilling, and the latter, more accustomed to mining, looking after the blasting. Two days before, they had been put at work at the point where the raise came into the east and west drift, with instructions to run another drift to the south, and had gone five or six feet, when, just as they were about quitting work for the day, the plaintiff, claiming that he heard the trammers below calling for dirt, crawled out on a plank which had been placed across the mouth of the raise, that he might be the better enabled to look down into the chute, and learn its condition. It is hardly necessary to say that the only light in the mine was that which came from candles carried by the miners, in hat or hand, and that only a very close examination would show the amount of dirt in the chute. While lying on the plank a quantity of the substance called “soapstone” fell from the roof just overhead, 'struck the plaintiff, and caused the injury — a fracture of the bones of the leg — of which he complains. The verdict was in his favor, and this appeal is from an order denying a new trial. The assignments of error, twenty-five (25) in number, several of which need not be mentioned, all go to the rulings of the court on the admissibility of testimony, and as to its charge to the jury.
1. The object of the testimony as to what was said by the tram-mers below, and as to what called plaintiff out on the plank, and why he went there, was proper and competent for the purpose of
2. The question as to the practice and custom of timbering up in iron mines similar to that of defendant was'competent and proper. When the inquiry is whether one has used ordinary care in' a particular case, the degree of care required is that which men of- ordinary prudence would usually exercise under like circumstances. Kelly v. Southern Minn. Ry. Co., 28 Minn. 98, (9 N. W. Rep. 588.) The risk assumed by plaintiff when he entered defendant’s-employ as a miner was such as is incident to the performance of his work in the usual and ordinary way, — just such risks as usually and ordinarily surround mining operations. If, in mines similar to that worked by defendant, it was the practice and custom to timber up where there are bad places, the plaintiff had the right to believe that such practice and custom would be followed and observed by defendant corporation. The counsel are greatly in error when asserting, as they do in substance, that as a matter of law the plaintiff, when entering defendant’s service, assumed the risk which attended the work as conducted in accordance with defendant’s methods, not such risks as are usually and ordinarily incident to mining operations under like circumstances, and also such risks as he knew .about, and may be said to have knowingly and voluntarily encountered.
3. The “shift boss,” Wicks, a witness for defendant, was called upon to state his opportunities and his manner of observing the condition overhead, as he went about the mine. His testimony was-that he made no examination unless he noticed that something had fallen as he walked about. Then he put up his candle and looked, presumably to see whether there was danger to be apprehended in the future. He was then asked “whether that was a sufficient precaution in your experience in that mine.” .An affirmative answer to this question was stricken out, on plaintiff’s motion, and this ruling of the court is alleged to have been erroneous. The counsel now urge that, by means of this ruling, competent expert testimony as to what
4. Upon the part of the plaintiff, it was contended that the evidence- was sufficient to establish his claim that soapstone, when found with the ore, is an exceedingly dangerous substance, very liable to fall from overhead if not removed, and that the probability of its falling becomes much greater by exposure to the air, and that, when uncovered by the workmen as they open the drifts, it should be removed, or timbered up,'if in the roofs, so that it will not drop down. The negligence complained of was in allowing this mass which fell to remain wholly unnoticed for about three weeks before the accident, when, on opening the east and west drift, it should have been removed, or something done to prevent its falling upon those who might have occasion to work or pass underneath it. We have referred to the dispute as to the manner in which the raise was left by those who made it, and whether its south wall was carried on up to the top of the drift, or left it about as it was when brought through into the floor. The defendant claimed that the south wall of the east and west drift was not interfered with until plaintiff and his brother commenced their work, and that, as they ran the drift to the south, they removed the material above the south half of the raise to the proper height, and were therefore responsible for a failure to remove the soapstone above. The plain
5. The charge in this case, taken as a whole, was clear and explicit, and it was a full and accurate exposition of the rules of law, well settled in this state, which govern in actions of this character. The general duty of the'master to the servant, which is to be performed in person or through others, and the extent and nature of this duty, was stated in the language so often used in the opinions of this court, and needs no repetition. And the court went fully into the matter of assumption of risks by the servant, and the degree of diligence, foresight, and care which the law imposes upon him. All the facts,
Order affirmed.