136 P. 846 | Or. | 1913
delivered the opinion of the court.
Plaintiff was an experienced miner, and had been stoping. ■ Aside from breaking down ore, it was his duty to timber his work according to his best judgment. Another workman, Herr, had been stoping a little farther east from the plaintiff. "When plaintiff quit work on the evening of the 25th of October, 1912, he had just broken through into the stope of Herr, and when he returned next morning he found that a large mass of earth, rock, ore and ledge matter, about ten feet in length, had broken loose from the hanging-wall, and settled down onto the foot-wall, among which was a large rock or chunk of ore extending above the fallen mass. Dunstan, the defendant’s foreman, told Morello, another workman, to take out the best of the ore, and to leave as much of the waste as possible. As stated in plaintiff’s brief: “After inspecting the rock, he [Dunstan] gave orders that it should not be removed, but should stay with the waste, and left in the position it then was. ’.’ Thus it appears that the waste was to be left in the stope, and that the rock which caused the injury was classed as waste. Plaintiff says he “was picking out the ore on the foot-wall when this rock rolled out of there * * and tipped off. * * Morello was standing behind me, * * and I was picking in the foot-wall to get this ore out, * * and Morello * * could see, and he says, ‘Look out!’ and I sprang back, and the next thing I knew I felt a pain in my foot. # # The top of this big rock struck it as it came down.” Morello says of the accident: “He [plaintiff] was picking, and I was behind him three or four feet shoveling this ore in the chute, and he found a chunk right in front
The judgment is reversed, and the cause remanded to the trial court for such further proceedings as may be proper and not inconsistent with this opinion.
Reversed.