84 Kan. 560 | Kan. | 1911
The opinion of ..the court was delivered by
This action was brought by a widow to recover damages for the death of her husband, caused by the alleged negligence of the defendants in the operation, as partners, of a lead-and-zinc mine. Defendants Griggsby and Elliott admit that they were operating the mine at the time of the injury, but deny that the other defendants were their partners or interested in the business. The other defendants deny the partnership, and deny any participation in the business until after the injury. The plaintiff recovered a judgment against all the defendants.
Every was a laborer in the mine. Sometime before
Every was killed while at work in the mine on the 21st day of October, 1909. He was shoveling ore into a tub which stood on a push car in a drift about 100 feet from the shaft. His duty was to fill the tub, push the car to the shaft and there attach it to the hoisting apparatus, and return with another tub and repeat the operation. Thirty feet beyond where he was at work another laborer, was drilling into the face of the mine, preparatory to blasting. Every had just filled his tub and started to push it to the shaft when he received a signal that a shot was about to be fired, and he, with other laborers, went on to the shaft for safety. The shot was fired, after which the signal “that’s all” was given by the shot firer, in pursuance of" his duty. The signal was a notice to the laborers to return to their work. About five minutes afterward, while Every was going back to his work and when he was within twenty feet of that place, a piece of soft rock fell from the roof, inflicting the injury from which he died. The drift varied from about fifteen to fifty feet in width, and from twenty-five to seventy feet in height. There was evidence tending to show that at the place of the accident it was forty-five to fifty feet high and fifty feet wide. Fifteen or twenty feet from this place there had been a cave-in at the side of the drift, extending to the roof and opening to the light, so that the roof could
There was evidence tending to prove that prodding should be done after each shot, the shots having a tendency to loosen the roof; also, that the proper time for firing shots was in the evening, although it was testified that different mines had different regulations. The roof was of flint rock, and the fragment that fell had not been noticed before its fall. The cave-in occurred about fifteen or twenty days before this accident.
The negligence complained of and submitted to the jury was the failure properly to prod the roof.
The jury found that the drift was lighted by the opening caused by the cave-in; that the roof of the mine could be seen by the miners; that Every was an experienced man; that he could see a person prodding the roof if that work had been in progress while he was returning from the shaft to his place. There was no evidence of the frequency of shots other than that a shot or shots had been fired the previous day. The evidence tends to show that this was after the prodding had been done in the morning of that day.
It is contended that the evidence is insufficient to sustain a finding of negligence against any of the defendants, and also that Every had full knowledge of the dangers and assumed the risk incident to his serv
It was alleged in the petition that the defendants, as copartners, were carrying on the mine under the name of the Mineral King Mining Company. The principal testimony to prove that the defendants other than Elliott and Griggsby were partners was a petition in a case wherein all these defendants, as plaintiffs, had sued the owner of the mine, Mr. Schermerhorn, for failure to make them a lease. This petition was signed by the same attorneys who represented the defendants here. In that petition it was alleged that the plaintiffs named therein were a copartnership; and that the copartnership was formed on or about the first day of October, 1907. To this petition several exhibits were attached, containing items dated in October prior to the date of the accident. After this action was commenced an amended petition was filed in that action changing the date of the formation of the alleged partnership to November 1, and omitting from the exhibits all items dated before that time.
It is insisted that there was error in admitting the petition in evidence. All the defendants except one testified that the Mineral King Mining Company was formed about November 1, but no one gave the exact date. It seems that Mr. Elliott organized the company, and that the different individuals joined at different dates — according to their testimony, near the first day of November, and each one testified that he had nothing to do with the mining operations before that time. It also appears from their testimony and that of the owner of the mine that the old lease to Clary & Schultz was surrendered on that day. No testimony was offered explanatory of the mistake in the dates given in the petition offered in evidence.
There was also some evidence of accounts kept with
It seems to be conceded that the finding that the defendants other than Elliott and Griggsby were copartners with them in carrying on the mine at the date of the injury is based principally on the admissions contained in the petition in the Schermerhorn case; therefore the ruling upon the objection to the petition in that case is material. It is held in this state that such a pleading is admissible when filed in the same action. (Arkansas City v. Payne, 80 Kan. 353.) The reasons stated in support of that ruling apply as well to pleadings filed by thé same party in another action, and it was held in Solomon Rld. Co. v. Jones, 30 Kan. 601, that a verified petition in another action is admissible. (See, also, Bank v. Edwards, ante, p. 495.) While a verification may give additional probative force to the
The contention of the defendants that there is not sufficient evidence of negligence to sustain the verdict is based principally on the proposition that the defendants had no notice or knowledge that the roof of the mine was defective. Two of the defendants were practical miners and in personal management of the mining operations. The fragment which fell was of different formation than most of the roof. While there was evidence that it could not be seen, it appears that it might have been discovered by prodding, the means resorted to to ascertain the condition of the roof; but it was a question for the jury whether it might have been. The last use of the prod before the injury was on the morning of the previous day, although shots had been fired afterward on that day, which, as the evidence tends to show, would have a tendency to loosen fragments of the roof. Nothing was done by prodding or otherwise to ascertain its condition when work was commenced the next day, nor at any time before Every was killed. The prod used would not reach over the whole roof at the place of the injury, and the system of inspection by the means adopted seems to have lacked method and that thoroughness reasonably commensurate with the dangers attending the hazardous operations of mining, especially when accompanied by the use
In Griffin v. Brick Co., ante, p. 347, it appeared that a laborer had been injured by a rock which had fallen from the face or wall of an excavation at the foot of which he was working in a shale pit. The court said:
“It was the duty of the appellee to use reasonable care to put the bank in a condition and keep it in a condition which would render the operation of cars on the car track reasonably safe from all caving naturally to be anticipated in consequence of the steam shovel’s work; and this duty required that the bank be inspected with the care and frequency which reasonable prudence demanded, under all the conditions presented.” (p. 348.)
The evidence tends to show that the defendants knew that it was necessary to inspect this roof to guard against such injuries as the one causing the death of Every, and it was a proper question for a jury, un
No proof was offered to support any claim of negligence except the one already referred to, but two other charges of negligence were contained in the petition, and in giving the instructions the petition was read to the jury. The defendants claim that the court thereby submitted issues without proof. In stating what the plaintiff must prove to make out her case the court instructed the jury that if the defendants “failed to properly prod the roof of the mine in question at the point where the deceased received the injury, and that the mine at that point was not properly cared for in a reasonably safe and suitable manner, and that by reason of the neglect . . . this deceased met death . . . then . . . your verdict should be in favor of the plaintiff.” In this instruction the court tersely stated the faets which the plaintiff was required to prove to make out a case, and the jury could not have been misled by the mere reading of the petition. Besides, if the defendants feared that they might be prejudiced by such reading, a request should have been made for an instruction eliminating every charge of negligence- except the- one referred to' in the instruction quoted.
It is insisted that Every assumed the risk of the injury, and that this is shown by the evidence and by the special findings. It is said that the findings show that he was as well able to determine whether the drift was dangerous as all others who were working there. This
“The. servant does not accept the risks of unknown, latent, unseen or obscure defects or dangers, such as the servant would not discover by the exercise of ordinary care and prudence, having reference to his situation, but such as the master ought to discover by exercising the duty of inspection which the law puts upon him to the end of seeing that the premises, tools and appliances with respect to which the servant is required to labor are in a reasonably safe condition.” (4 Thomp. Com. L. of Neg. § 4641.)
Other objections to the proceedings, referred to in the brief, have been considered, but further comment is •deemed unnecessary.
The judgment is affirmed.