81 Mich. 548 | Mich. | 1890
The plaintiff sues to recover damages for,
The Aurora is a hematite or soft ore mine, and the method adopted for carrying on its operations is what is known as the “ Nevada system,” and requires an elaborate system of timbering in the stope to permit the taking of ore.
The plaintiff’s case, as stated in his declaration, is substantially as follows: He was employed in stope No. 1, of shaft No. 5. The shaft was about 200 feet deep, and the stope at the bottom of the shaft was about 60 feet long and from 22 to 25 feet wide, and about 40 feet high. The mining was conducted by taking down ore from the back or roof of the stope. As the work progressed upward, and the stope was mined out in that direction, successive sets of timber were put in, commencing at the bottom, for the purpose of forming a staging or scaffold, upon which the miners could work at the roof in taking down the ore, and also to support the sides of the stope to prevent ore from falling inward or downward, and to support on the top thereof loose ore mined down from the roof. Such sets of timber were required to be of strong material, strongly built, and firmly braced. The plaintiff had nothing to do with the furnishing or placing of such timbers, or building of such staging, or the care thereof. His duty was the mining of ore by blasting and picking, in which work he was obliged to stand upon the top of such staging or sets, on the , floor of poles, called “lagging.” This floor of poles also received and held piles of ore brought down in the process of mining. It was necessary in such mining to accumulate large masses of ore on top of such staging until it could be let down, by lifting the poles, to the bottom. The weight of ore
That prior to the accident the defendant had constructed and placed in the stope where it occurred a staging or scaffold consisting of several sets of timbers, each of which was about seven feet wide and nine 'feet high. There were three sets of such timbers across the width of the stope, upon each of which was built upward three additional sets, making the staging four sets high and three sets wide. The two walls of the stope were called, the upper, the “ hanging,” and the lower, the <ffoot wall.” Cross-timbers on the foot-wall side were placed against and in the ore or rock, but on the upper or hanging side the sets of timbers were supported only by upright posts, leaving spaces of varying widths between the staging and the hanging wall.
“ That by the negligence of the defendant, and its inattention and violation of its duty in the premises, said staging and scaffold were built of improper and insufficient materials, and of materials not fit for the purpose, and the same was improperly and insufficiently constructed on the foot-wall side, and was insufficiently, improperly, and negligently constructed on the hanging-wall side, for the purpose of being a solid and safe structure, and was not supported or braced so as to prevent the same from swaying or giving away, or the timbers thereof from*551 becoming loose or getting out of place, and was not firm or solid enough to sufficiently bear the weight of ore necessarily accumulated on the top thereof, or withstand such motion as operations by the plaintiff and others upon the top thereof would necessarily produce; and insufficient and improper timbers and materials were by the defendant provided for that purpose, so that at the time aforesaid said structure was unsafe for plaintiff to work upon, on the top thereof, as he was obliged to do. All which was well known to .defendant, but was unknown to plaintiff.
“ That, on the day aforesaid, plaintiff was at work upon the top of said high staging, mining down ore, as he was employed to do, when, without any fault on his part, but by and through the wrongful conduct, carelessness, and default of the defendant as aforesaid, said structure fell with the plaintiff, and a quantity of ore. accumulated thereon.”
The plaintiff claims to have been seriously injured in his back, and to be crippled and permanently disabled.
After the proofs had all been taken, the court took the case from the jury, and directed a verdict for the defendant. In doing so the court said:
“ In this case the evidence of the plaintiff himself is that he had knowledge that no stull timber or blocking was placed between the timber sets and the hanging wall; and the only evidence in the case charging negligence on the part of the defendant is the fact that such lagging and blocking were not put there.
“The plaintiff is a man fifty-one years of age, with thirteen years* experience as a miner. He had labored thirteen years as a miner, with large experience in hard and soft ore mines. Knowing it was not put there, and no promise having been made by the defendant or its authorized agents to put in the blocking, and no assertion made that it was safe without, being a man of experience and age, he should have known himself; and it would be contributory negligence on his part to work there.”
The sole question in the case is as to whether the court was right in taking the case from the jury, and in
It appears that Capt. Hibbard was the superintendent of the mine; that Capt. 'Brewer was the mining captain, and had immediate charge of the operations under ground. William Trethewy had charge, under Capt. Brewer, of the timber-men. The plaintiff, and others working with him, were getting out ore under a contract at 40 cents a ton. They had nothing to do with the timbering, either jn making or supporting the scaffolds. The duty and the negligence of the defendant is much more broadly charged in the declaration than is stated by the circuit judge in his instruction to the jury. In addition to the duty of properly building, supporting, and bracing the sets or scaffolds, it is said that it was the defendant’s duty to examine the same from time to time, and ]ceep them in repair. It is charged, also, with inattention and violation of its duty in the premises, by means whereof the staging or scaffold was not supported or braced so as to prevent the same from swaying or giving away, or the timbers thereof from becoming loose, or getting out of place. In other words, the defendant is charged with the duty of inspecting the staging and its supports, and with neglecting that duty.
There is evidence in the record to support this charge of negligence. The plaintiff says that the set which fell had been supported and braced by a “sprag,” which was a short piece of timber, one end of which rested against the hanging wall, and the other against the upright posts of the set. This was not the best way of supporting and protecting the timbers, but it was a method adopted in that mine to a considerable extent, and it will not do for the defendant to claim that it .was unsafe and danger
But we do not agree with the learned circuit judge on the main proposition in this case, — that, because the plaintiff knew that no lagging and blocking had been put
Whan Brantlin called Capt. Brewer's attention to the condition of the set, if Brewer could not see the condition of the timbering from where he was at the time, neither could Brantlin or the plaintiff. It was Brewer's duty to go where he could see and examine it. The plaintiff had a right to expect that this duty would be performed, and the fact that immediate steps were taken by Brewer towards the performance of this duty — that men were set to work getting out timbers for that purpose — had a tendency to assure the plaintiff that Brewer
When it is remembered that it was always dark in the mine; that the defect, if it was the displaced sprag, could only have been discovered by one groping with a lamp for that purpose, and, if it consisted in the use of the sprag instead of lagging and blocking, that this method was deliberately adopted by the defendant as safe, — it seems to me it is going very far to say that plaintiff was, as a matter of law, guilty of contributory negligence because he did not in the first case find out about the displaced sprag, or in the second case teach his superiors a better method of doing their business.
The cases cited by defendant’s counsel, to show that a servant assumes ail the dangers that are apparent to him when he enters the employment, have no application to a case when the danger is questionable or debatable, and when it is apparent only to those possessing peculiar skill and knowledge in -such matters. I believe the views here expressed are amply supported by authority. Smith v. Car-works, 60 Mich. 501, and cases cited by Mr. Justice Sherwood. We think the case should have been left to the jury.
The judgment is reversed, and a new trial granted.