12 Utah 51 | Utah | 1895
The complaint in this action alleges: That on and prior to March 6, 1894, plaintiff was in the employ of defendant, at its mines in Eureka, and that, prior to said time, defendant had constructed on and across certain timbers in the Daisy stope a certain walk, for the use of the employés of defendant, of several planks, laid end to-end across said timbers and through the stope. That the-walk was negligently and carelessly constructed in part, and of materials that were defective and in an unsafe and dangerous condition, and unfit for the purpose, and known to the defendant at the time to be so; and defendant negligently and carelessly • permitted and allowed part of the materials entering into the construction of the said walk to become defective, unsafe, and dangerous, and to remain in such condition, knowing that they were becoming and were in such condition, and that they were so unsafe,defective, and dangerous on the day of March 6, 1894. That plaintiff, while in said employ, and while discharging
The answer denied that at the time mentioned in the-complaint, or at any other time, it was the duty of defendant to provide or keep for the use of plaintiff a safe or-suitable plank or walk, in good condition or repair, at the-place mentioned in the complaint of plaintiff; and denied that defendant negligently or carelessly constructed at the-place mentioned in the complaint a walk, or constructed the same out of defective materials, or that the materials-were unsafe or dangerous, or unfit for the purpose, or that defendant negligently or carelessly, or at all, permitted or allowed any part of the materials entering into the construction of the said walk to be or to become defective or unsafe or dangerous, or to remain in a defective, unsafe,, or dangerous condition, or knew that the same was-becoming or remaining in a dangerous, defective, or unsafe . condition; and denied that at the time or place mentioned in the complaint, or at all, it was the duty of the defendant to construct or maintain a walk
The appellant is a corporation engaged in operating a mine at Eureka, TJtah. Its operations are extensive, and had been carried on for a number of years prior to the accident in March, 1894. The accident to the respondent occurred in what is known as the “ Daisy Stope,” — a large opening in the mine, from which rock and ore had been extracted, extending from about the 200-foot level downward below the 700-foot level,.a distance of some 500 feet or more. It is of varying width, and is filled with what is known as “square sets;” being large, upright timbers, six feet in height, surmounted by caps six inches square. This is the ordinary and familiar mode of timbering large openings in mines. It serves the double purpose of a stay,
Eespondent was a timberman, and was directed on the day of the accident to go to the Daisy stope, at the place where it is intersected by the 600-foot level, and lag up the timbers; that is, fill in behind the square sets with plank and lagging, so as to keep the dirt from falling down to the level. He worked at this half a day. In the afternoon, having lagged up as high as they could reach from the level, the respondent and his companions started ujd from the level to a point in the stope among the square sets, which they desired to reach to continue the work. In order to do this, they ascended a ladder which extended, from a point further on in the level, up
Tbe law is that tbe employer is bound to furnish a reasonably safe place for the employé to work in, and must furnish such information as to dangers latent, or not apparent, as may reasonably put the employé on bis guard. Where the locality or the appliance is dangerous, and the means of knowledge are equally within the knowledge of the servant and the employer, the latter is not obliged to take any greater care of the former than he (the servant) does of himself. Even though it should be held that the company was negligent in not notifying plaintiff, or sending some one with him to warn him of the condition of the plank which broken the evidence shows that the accident occurred through the negligence and rashness of the plaintiff himself, directly contributing to the injury. Plaintiff, as we have pointed out, had all the knowledge which any one, could have as to the general condition of the timbers in that stope, and of the probable rottenness or soundness of the planks by which he attempted to cross. He says in his testimony:. “I went up the ladder-way to the sixth sets above the 600-foot level, and went back north from the ladderway to the place where we were lagging; and there was a plank and a gangway left running from the ladderway to where I wanted to go. I started through there, over the set. I tried the plank first. I knew that the plank standing there might possibly have become decayed, and I used all precautions I could. I tried the plank as well as I could, by putting out my foot and springing on it, before I started across. This was the first set north of the ladderway. When I got to the next set north .of that, I tried the plank, and found that it would support me, and I went across; and so with the third set. When I got to the fourth set, I did
Under these circumstances, the. respondent is chargeable with the reckless assumption of the risks involved in trusting his weight on the plank. It was entirely unnecessary. He had timber and planks at his disposal, and could have procured a sound plank to form for himself a safe passageway. There was timber in thé mine and in the yard which he could have procured for the asking. He could have walked on the caps, which are 8x10 inches; and this is the usual method of proceeding through dangerous stopes, where planks are liable to be rotten. He incumbered himself with a rope and pulley in one hand, and his candle in the other, so that he had no opportunity to save himself when the plank broke. He could have proceeded by the safe ladderway up to the 550-foot level, and there made fast his rope and tackle. The omission to take these ordinary precautions, under the circumstances, was an assumption of the risks involved, and the consequences cannot now be thrown upon the appellant. He knew that, if the plank happened to- be decayed or .defective, there was no custom of the company, or of any mine, to repair it. . He knew that he was thrown entirely upon his own discretion and judgment, and could expect nothing on account of any care on the part of the employer. The courts, without hesitation, in all cases like this, deny relief to the party injured. A contrary rule would make the employer not only an insurer, but an insurer against the recklessness and carelessness of the employé himself. From a careful examination of the evidence in this case, we are clearly of the opinion that respondent was guilty of contributory negligence, which led to the accident, and, therefore, that he cannot recover. In support of these propositions, we cite the case of Hazelhurst v. Lumber Co.
From a careful examination of this case, we are of opinion that' plaintiff’s own negligence and carelessness contributed to the injuries complained of, and, therefore, that he cannot recover. Judgment reversed, with directions to the court below to grant a new trial.