26 Mont. 434 | Mont. | 1902
delivered the opinion of the court.
The plaintiff, having suffered ¡personal injuries in a mine
On motion for nonsuit, whatever the evidence is sufficient to prove in favor of the plaintiff must be considered as established; in other words, when sirch motion is interposed, the truth of the evidence tending to support the plaintiff’s case must he assumed and must be regarded in the light most favorable1 to him, — that which the evidence tends to show must be taken ¡is proved. This Avell settled rule has been repeatedly declared and applied by this court. No less well settled is the rule that if the plaintiff, in attempting to make a case, shows that he ought not to recover, either a nonsuit should be entered or a verdict directed on motion, whichever practice prevails in the particular jurisdiction. In this state, nonsuit is the technically correct method. (McKay v. Montana Union Ry. Co., 13 Mont. 15, 21 Pac. 999.) In actions for personal injuries the absence of contributory negligence is not required to be pleaded or proved by the plaintiff, but its presence is a matter of defense. Such is the law in Montana. (Higley v. Gilmer, 3 Mont. 90, 35 Am. Rep. 450; Mulville v. Pac. Mutual Life Ins. Co., 19 Mont. 95, 47 Pac. 650; Snook v. City of Anaconda, 26 Mont. 128, 66 Pac. Rep. 756.) The contrary rule Avas announced in Ryan v. Gilmer, 2 Montana Reports, 517, 25 American Reports, 744, but has been overturned by the oases cited and those referred to by the opinions therein. If, hoAvever, the complaint sIioavs the proximate (or a proximate) cause of the injury to have been the act of the plaintiff, the complaint must also state his freedom from negligence in the doing of the act; othenvise the pleading is bad. (Kennon
The motion for a nonsuit in the case at bar was similar to the common law demurrer to the evidence, in that it performed the office of admitting’ as facts what the evidence tended to prove, thereby presenting the question whether the facts so conceded, when viewed in the light most favorable to the plaintiff, were, as matter of law, sufficient to justify a verdict for him. So considering the evidence, the facts may be stated thus: On Saturday, September 28, 189.5, the plaintiff, aged 33 years, a practical miner of sixteen years’ experience, familiar with the risk and dangers incident, to the hazardous occupation, was severely injured by a fall of rock in the Alta mine, operated by the defendant, a corporation. He had been so in the employ of the defendant, and working for it as an underground miner in Ihe .Vita mine since 1892. Eor many years he had operated a machino drill used for boring holes in tunnels and raises so that blasting might be done. When hurt lie was engaged in constructing a three-compartment, inclined raise on the vein, following the foot wall, from the 1200-foot level to an intermediate tunnel eighty feet distant. The raise departed from flie perpendicular at an angle of about 45 degrees — the dip of the vein. Each compartment was a separate chute; the-middle one was the man-way, the others, one on each side of
Nor thirteen days before, and on the day of, the accident, the plaintiff was working on the day shift. One Running, his fellow servant, was working on the night shift, and 'had been
On Friday, the day before the accident, tlie plaintiff put in four sets of timbers, and lagged the stringers for about two and one-half .feet above the floor. When be stopped work on that afternoon, tlie face of tlie ground over the west compartment, or chute, was about five feet above the top of the timbers and, hence, about eleven and one-half feet above the floor; over the east compartment' or chute, .the ground hung lower, being three feet above the top of the timbers, and hence about nine and one-half feet above the floor, projected three or four feet over the chute, and reached from the hanging to the foot wall. This ledge he sounded with a hammer before going off shift on Friday afternoon; finding it solid, he did not brace it. The space across the top of the sets of timbers was left open. Before going away on Friday afternoon, that plaintiff at 5 :30 o’clock, fired and blasted four holes which had been, drilled by Running the night before, in the center of the raise over the man-way; two were in the hanging- and two in the foot-wall; each was seven or eight feet deep and was started about one foot above the ledge projecting over the east chute. The further ends of the holes were about eight feet from the ledge. Each hole was ene and. one-liálf inches in diameter and contained powder to' a depth of from eighteen inches to two feet, lie did not go back to see what effect the blast had, or where the dirt and rocks fell; it was not his duty to do so. After he had blasted, the first man in the ordinary course of business to go into the raise made by the plaintiff, was Running, whose duties were to lag up the stringers, fill with waste the space between the stringers and the hanging-wall, drill two rounds of holes, lag the top of the timbers for a floor under the ground to be blasted, leaving the top open elsewhere,- and to charge, fire and blast at ten minutes after five o’clock in the morning of Saturday. It was not his duty to observe the effect of the
At ten minutes before seven o’clock on the morning of Saturday, the 28th, the plaintiff, according to custom and in the performance of his duty as a servant of the defendant, went into the raise to continue the work. He had not inquired whether Running* was still in defendant’s employ, and did not know whether or not Running* had worked there during* the night. Iiis first duty was to examine the ground for the purpose of ascertaining its condition and to remove that which was found to be broken down or loose. Reaching the first, or lower, floor at the west end of the section of the raise constructed by him on Friday, he caw that the timbers put in by him had been lagged entirely across the top sets, thereby making a floor which hid the face of the raise. The usual way of access was barred by this floor. Between the' stringers (which he had partly lagged on Friday) and the hanging-wall there w*as a space three feet wide for waste. To reach the top floor he climbed up through this space and then over the girders. Thus he brought himself upon the top floor and next to the face of the raise. If the ground over the east chute had not been drilled or blasted, tlie floor should have been there left open; if drilled or blasted, it should have been closed by lagging*. It was so closed; “it was lagged clear across the four sets, it was lagged right up tight.” When lie reached the top floor he saw that blasting had been done. He saw a large opening in the ground at the west end of the face of the raise. He knew that, thirteen hours before, he himself had blasted four holes over the center of the raise; this, he says, had no effect upon, the projecting* ledge on the east chute. He knew also that the man who had just gone off shift had drilled, and probably blasted, two rounds of holes. He found that die charges fired by him had knocked down part of the ground, and that the work had been continued from where the plaintiff had blasted almost to the intermediate tunnel, — a distance of two sets or thirteen feet from the top floor. *‘Running had lagged up .that floor, and most of the ground that
Tbe plaintiff contends that tbe inferences deducible from these assumed facts, which we bave stated at considerable length in order that tbe conditions may be understood, were for the jury to draw, and that they were sufficient to justify a verdict for tbe plaintiff.
A servant tacitly agrees, by virtue of tbe contract of employment, to encounter and assume tbe ordinary risks incident to tbe service, one of which is tbe negligence of bis fellow-servants. In tbe case at bar tbe plaintiff and Running were fellow-servants in the employ of tbe defendant. But it is contended that because the plaintiff relied upon tbe defendant’s unkept promise io discharge Running for negligence and unfitness, tbe defendant assumed tbe risk and hazard of Running’s negligence which might thereafter cause-injury to tbe plaintiff, and became answerable for such negligence to tbe same extent as it would be bad tbe negligence been its own. For present purposes this may be granted, and it may be granted also that Running was negligent-, and that without bis negligence in boring six boles and leaving tbe ledge unsupported, tbe plaintiff Avould not bave been hurt. Assuming all this to be true, we are nevertheless of tbe opinion that tbe defense of contributory negligence was conclusively made out by tbe evidence of tbe plaintiff. He, an underground miner of many years’ experience, following a vocation dangerous to life and limb, and familiar with its risks, was engaged in making a place — a place which be was creating and changing as tbe work progressed. On Friday afternoon be blasted four boles in tbe center of tbe
All the specifications of error are disposed of by the foregoing considerations. Let the judgment be affirmed.
Affirmed.