120 P. 797 | Mont. | 1912
delivered the opinion of the court.
Action by employee against employer for damages growing out of personal injuries sustained in the Speculator mine. Plaintiff had a verdict and judgment for $1,500. Defendant appeals from the judgment and also from an order denying a new trial.
The complaint charges: “That the defendant commanded and ordered the plaintiff on the 27th day of January, 1910, to go to work at, and in obedience to such command, the plaintiff went to work at, No. 1696 stope connected with the main shaft of the defendant of the Speculator quartz lode min
The answer, in addition to a denial of any negligence on the part of the defendant, alleges that the plaintiff was injured by reason of a lack of ordinary care on his part, that his own negligence and that of his fellow-servants contributed directly to his injury, and that he was engaged in making safe the place where he was injured, and therefore assumed the risk of injury.
It will be noted that the complaint charges primary fault on the part of the defendant in that it had negligently placed two long stringers above the set, resting on the set, upon which a
1. It is contended by the appellant that the charge in the complaint that the stringers were “negligently placed” must be construed to mean, simply, that it was negligence to place stringers there at all, and that it could not mean that they were placed in a negligent manner. On the other hand, the respondent argues that the phrase is sufficient to allow proof that the stringers were placed in a negligent manner in that the sets were not properly “laced” and the leading set was not “breast-blocked” or “angle-braced.” It is also contended for the respondent that the complaint charges generally that the place was negligently and insufficiently timbered. We do not agree with any of these contentions. In our judgment,
2. The next contention of the appellant’s counsel is that the court erred in overruling their motion for a nonsuit.
Although it is so alleged in the complaint, there is no testimony to warrant the conclusion, and indeed, it was not claimed at the trial, that there was any negligence in allowing the loose rock to hang over the stringers. So that the only negligence complained of was that the stringers were negligently placed. It is also contended by counsel for the appellant that not any negligence could be predicated upon the fact that blocks were placed under the stringers for the purpose of tilting them up to an inclined position, thus increasing the liability of the forward set collapsing, and rendering the method employed defective. The complaint does charge, however, as aforesaid,
We quote such portions of the testimony as we deem necessary to illustrate the situation at the time of plaintiff’s injury.
James J. Dwyer testified for the plaintiff: “On the 27th of January I was in there to put in some stringers, to catch the place up. I was working that day under the orders of Joe Wells. He was not present during the progress of putting in those stringers. He gave orders to put them in. He was the shift boss. A shift boss would come around and tell us what to do and how to do it and where to do it and when to do it, and it was the duty of the employee to obey these orders. Wells was present about five minutes before we quit on that shift. He seen the work that was done when he came in there. With reference to the timbering, it was exactly in the same condition when we quit as it was'when Wells was last in there. With reference to lacing, when we left we had the first and second posts laced together on the hanging and that was all. The taking of weight on the stringers would have an effect to push the leading set on which the stringers rested ahead, the way the stringers were put in. From the character of the ground, one familiar with mining would naturally expect the stringers to take weight when the ground settled on them. After putting in the stringers and catching the back up, our object was to go ahead and put in another set of timbers and use the same course in going ahead until we made the place safe. Over these stringers we put some 10 by 10 timbers, and I think we finished up with 5 by 10 for cribbing from the stringers to the back.”
Patrick Kinney testified for the plaintiff: “Wells, the shift boss, told us to get some stringers in and tail them down with 10 by 10 blocks, so as to save cribbing on top of them. It wouldn’t take so much cribbing to crib up the back. We done just what he told us. The stringers weren’t level. They couldn’t be level. They were right on the edge of the front cap, so that the weight was’ pressing ahead. If any weight came, I should think it would take weight to go ahead. The stringers and. the timbers in the leading set would go ahead.
Plaintiff then introduced in evidence, over defendant’s objection, certain portions of the answer, in which it was alleged that “plaintiff knew and appreciated the dangerous character of the place,” that he had full knowledge “of the dangerous condition of the place,” and that defendant had caused the stope, together with the timbers and other appliances therein to be carefully inspected and throughly examined at frequent intervals. This ended plaintiff’s case in chief, but as it was materially strengthened, or at least corroborated, we think, by certain of the defendant’s witnesses, we shall give a summary of their testimony:
Joseph T. Wells testified: “When I came down there and seen the place was down I ordered them to put in stringers and crib the back. When I [afterward] came around there I asked them why the blocks were in there, and they said they put them in there so they wouldn’t have so much cribbing to pack. When I left them they had the hanging-wall laced and I supposed they were going to finish up the lacing on the footwall side, to hold it from going forward. What I supposed would be done was that the posts would be laced back. My duties were looking after the shift, and that embraced the mining and timbering of the stopes and the reporting of any dangers to the management. It was my duty to look out for dangers and report them to the management. It was my duty to look out for dangers in this particular place and to discharge men who did not suit me, but not to employ men. I had 90 or 100 men under me. Lacing would not have had very much effect on those sets if that ground had broke off big, lacing wouldn’t have been' much support to them. Of course it would have helped a little, but it wouldn’t have been no great support. I do not
William Judson: “I considered that these stringers over the leading set were put in proper when we put them in. The reason those lacings were not put on, according to the instrue
Nick Tepish: “There is a general rule among miners, wheu they get up to a place, the first thing is to go in and see how the place looks.”
T. E. Mitchell, Jerry Sullivan, Andrew J. Daum and James McQuayd, all mine foremen in Butte, testified in effect that it was customary and proper to place stringers as those in question were placed, including the blocking on and under the caps.
Ted Loftus, defendant’s witness, testified: “I could see that the place was dangerous all right, but I did not see that it was about to fall. It might catch all four of us all at once all right. I could see that in a second.”
Will Morrow, plaintiff’s partner, so called, testified: “I am acquainted with the ordinary and usual customs of timbering in stopes in this camp, and these stringers were put in in the ordinary and customary manner. When Loftus and Nick went back after the lacing, it was understood between the four of us— of course, we knew that Kinsel and I had to stand the timbers. It was our duty to stand the timbers, and we would have to do that before they could do any mining at all. So Kinsel and I went in to clean out, to stand the set, while they were after the lacing. I went in on the footwall side, and was cleaning out the tenon with my hand, and Kinsel was standing on the other side from me, and he was under the cap of the last set, and I believe he was barring down some boulders on that side, and that is all I remember. The pressure of these tail blocks didn’t add to the weight on the cap. I don’t know why those stringers fell. Nothing in the world could hold the ground when.it starts.”
3. In our judgment the plaintiff made out a prima facie case of primary negligence on the part of the defendant, by proving that the method adopted by it for holding the back by ■means of inclined stringers was a negligent one. It was shown that the great weight resting upon these stringers in their inclined position had a tendency to crush the last set forward, and that the set collapsed, thus causing the plaintiff’s injury. Plaintiff, who was an experienced timberman, testified: “A stringer holds more when it is straighter than when it leans over more. The difference in height at the forward end would be that when they are standing more upright that way it has more of a tendency to push the set ahead when they took weight. I could see that the angle of these stringers made them dangerous just as soon as I got in front to see what was on top of them, to see what was hanging there. If I had put those stringers in there I wouldn’t have put them under one cap and over the other. I would have put them over both caps, if it took all the lagging in the mine. I would have put a stull across and would have cut a hitch [niche?] in both walls. Any man, if he went to put in stringers in over a set, the first thing he would do he would see that they would be sufficiently braced so they couldn’t go ahead and collapse the timbers.” Dwyer testified: “The taking of weight on the stringers would have an effect to push the leading set on which the stringers rested, ahead, the way the stringers were put in. From the character of the ground one familiar with mining would naturally expect the stringers to take weight when the ground settled on them.” Kinney testified: “'Wells told us to tail them down so as to save cribbing on top of them. The stringers weren’t level. They were right on the edge of the caps so that the weight was pressing ahead. If any weight came I should think it
It is perfectly clear to us that if the jury believed this testimony, they were justified in finding that the defendant had adopted a negligent method of placing the stringers and that the faulty means so adopted caused the first set to collapse and go forward, thus striking the plaintiff and causing the injuries.
(a) It is insisted that the motion for a directed verdict should have been-sustained, for the reasons that the place where plaintiff was working was not a completed place; that it was being created by plaintiff and his fellow-servants; that it was constantly being changed in character by the labor of the men working upon it; that the dangers were short-lived; that the plaintiff was engaged in making the place safe. It is said that under these circumstances no duty rested upon the defendant to furnish the plaintiff a safe place in which to work, but, on the contrary, the. latter assumed the risk of injury incident to such work.
(c) Again, it is contended that there is an absence of a necessary allegation in the complaint that the defendant knew of the defects which caused the set to collapse. Even so, the defendant, in the discharge of a primary duty,- having constructed
(d) It is contended that the plaintiff was guilty of contributory negligence. What has already been said on the subject of knowledge and appreciation of danger disposes of this assignment. It involved a question of fact for the jury.
(e) It is'suggested that if any negligence is established, it was that of servants of the defendant and fellow-servants of the plaintiff, and, as the complaint charges primary negligence, there was a failure of proof. We think the evidence of the plaintiff’s witnesses tends to prove primary negligence on de
Recurring to point “a” above: It is not altogether clear from the testimony that that part of the stope in which the back was supported by stringers was not a completed place (see 4 Thompson on Negligence, sec. 3982) ; but, be that as it may, we are satisfied that under the circumstances shown it may not be said, as a matter of law, that the defendant owed no duty to its servants to keep the place reasonably safe. When the casualty is caused by a latent defective condition of the place of work, or latent defective conditions surrounding the place of work, rendering it extraordinarily dangerous, and such latent defective conditions are the proximate result of a
5. What has already been said disposes of the contention that the complaint does not state facts sufficient to constitute a cause of action.
6. Again, it is claimed that the court erred in receiving testimony touching the powers and duties of Wells, the shift boss, and of what he said and did in connection with the work of placing the stringers. It is argued in the brief that the sole purpose of this testimony was to hold the defendant liable on the doctrine of the maxim respondeat superior. As has heretofore been said, however, such was not the purpose of the
7. Contention is made that the court erred in allowing plaintiff’s counsel formally to introduce in evidence those portions of defendant’s answer heretofore indicated. We find no pre
8. The conclusions heretofore reached dispose, in effect, of all of defendant’s assignments of error founded on the refusal of the court to give certain offered instructions, save that directed to instruction No. 4, which we shall hereafter consider.
9. At the request of the plaintiff the court gave to the jury the following instruction: “No. 5A. The duty of the master to
As already indicated, we think this instruction correctly states the law and is applicable to the facts in this case.
,10. Over the objection of the defendant the court also instructed the jury as follows: “No. 6A. The jury are instructed
As heretofore stated, there is some substantial evidence to the effect that the place over which the stringers projected was finished for the time being, and we think, therefore, there was no error in giving the instruction.
11. The court refused to give defendant’s offered instruction No. 4, which reads as follows: “No. 4. If the jury believe from the evidence that the place in which the plaintiff went to work at the time the injury occurred to him, in' so far as same
We regard this action of the court as prejudicial error. About the only defense interposed was that the work was done in the usual and customary manner and that such custom was established by prudent and skillful miners. Under these circumstances the questions of fact should have been submitted to the jury whether the work was done in the usual and customary way and whether that method was the one employed by prudent and skillful miners under like circumstances. If they had resolved both of these questions in the affirmative, they should have found for the defendant.- “Prudent” means sagacious in adapting means to ends; circumspect in action, or in determining any line of conduct; practically wise; judicious; careful; discreet; circumspect; sensible; opposed to rash; as a prudent man; dictated or directed by prudence or wise forethought. (Webster’s New International Dictionary; see, also, 6 Words and Phrases, 5770.) A reasonably prudent person, as the term is used in the instruction, means a reasonably careful person.
To follow the usual custom in providing places or furnishing appliances is not alone sufficient, for, as suggested by Mr. Thompson in his work on Negligence (volume 4, see. 3770), the “ordinary care” of certain employers may be habitually and criminally negligent. The degree of care required to exonerate
For error in refusing to give the last instruction considered, the judgment and order are reversed, and the cause is remanded for a new trial.
Reversed and remanded.