195 Mo. 637 | Mo. | 1906
— From a judgment of $6150 rendered in favor of plaintiff, a miner, known asa11 drill-man, ’ ’ for personal injuries alleged to be received at defendants ’ bands through certain specified acts of negligence, defendants, a mining partnership in tbe Joplin district, appeal.
One of tbe assignments of error is that tbe court should have sustained a demurrer at tbe close of plaintiff’s case, and, failing in that, should have given a peremptory instruction for defendants at tbe close of all tbe evidence. This assignment of error calls for an understanding of tbe issues and tbe material evidence.
Omitting mere matters of inducement and descriptive of tbe environment, tbe charging part of the petition, after setting forth certain duties alleged to be owing from defendants to plaintiff as an employee, is as follows:
Plaintiff says and alleges that tbe defendants, wholly neglecting and disregarding their duties in that*646 behalf, neglected to furnish plaintiff a reasonably safe place in which to work; that the defendants negligently failed to inspect the ground of said drift and use ordinary care and precaution to render plaintiff reasonably safe and to inform plaintiff of any and all latent dangers attendant on his said employment; that defendants negligently failed to use ordinary care to supply plaintiff with reasonably safe and sufficient appliances necessary for plaintiff to work in reasonable safety, and negligently refused to permit plaintiff to use appliances and precautions as were necessary for plaintiff to work in reasonable safety; that the defendants carelessly and negligently exposed plaintiff to danger; that the defendants carelessly and negligently commanded and directed the plaintiff to drill and work in an exceptionally dangerous place; that the defendants knowing that the ground where plaintiff was working was defective and dangerous, did negligently and carelessly order the plaintiff to continue work thereat; that all of said defects and danger referred to were known to the defendants or might by the exercise of ordinary care on their part have been known to them; that the same was not known and could not by the exercise of ordinary care on his part have been known to the plaintiff; that on said date, while plaintiff was in the employ of the defendants and while working in the exercise of ordinary care at said point in said drift of defendants’ mine, defendants wholly disregarding their said duty to plaintiff, negligently commanded and directed this plaintiff, employed in operating said machine drill, to drill a hole in the face of said drift in said mine at a point where said face had on a previous date been drilled into and the drill holes filled with dynamite or other explosives; that all of the dynamite or other explosives in at least one of said drill holes had not been shot or fired off, of which fact this plaintiff was in ignorance; that defendants failed and neglected to inform plaintiff that all the dynamite or other explosives in at least*647 one of said drill holes had not been shot or fired off, but that plaintiff having used ordinary care in inspecting said drill hole, and having used every precaution and appliance within plaintiff’s control, and which was furnished him and permitted by defendants, and suspecting that there might be danger there, so informed defendants, but defendants assured him that the same was safe and all right, and commanded and directed plaintiff to continue working thereat; that plaintiff, relying on the superior knowledge and assurance of defendants, continued working thereat as commanded and directed, and while exercising ordinary care, the machine drill which he was operating struck the shot or load of explosives so left in the said hole of said face as aforesaid, and thereby caused an explosion, knocking plaintiff down, injuring his body, putting out one of his eyes, paralyzing the other eye,” etc.
Of the three defendants, one, Wagner, answered by a general denial, a plea of contributory negligence, and averring further that plaintiff was an experienced 'miner, familiar with the conditions of the drift in which, he was working, had caused the condition therein existing and voluntarily assumed the risk of the injuries received by him.
The joint answer of the other two defendants, McRoberts and Best, was a general denial, fortified by a plea of contributory negligence and voluntary assumption of the risk.
The reply put in issues the new matter pleaded in the answers.
Defendants owed and operated a mine known as the Superior mine in a district known as the “Cornfield” in Jasper county, and were engaged in exploiting said mine for lead and zinc ore. Appellant McRoberts was the superintendent of the mine and his duties lay on top as well as under ground. Under him was a foreman, Collins, designated as a ground-boss— ground, in this instance, meaning underground — who had charge
Plaintiff was a skilled miner — in fact, considered himself the best in appellants’ employ. He had worked in all the branches of mining labor from “shoveler” up to ground-boss, had been “powder-man” and understood the effect and the handling of mining powder; and had been a drill-man for three years and was highly proficient as a driller. He had been in appellants’ employ for some time as a drill-man and knew the usages and customs of that mine; knew there was 'no air shaft; knew that powder was not allowed to he exploded during working hours; and knew that each drill-man was required, by custom or by direct order, to inspect his own drill holes and the effects of firing his own charges. The importance of this inspection will be apparent when we state that now and then, when a fusexwas lit, and the fulminating cap exploded, the dynamite would not explode, but might become in part what was known as “burnt powder,” i. e., dead powder. Some of the
There is a mining tool known as a “spoon,” i. e., a contrivance with a long handle of steel, drawn and rounded out at one end into a ladle or bowl like a tablespoon. The cutting steel has a bit of about one and one-fourth inches and cuts a hole about one and one-half inches in diamater and this spoon is of a dimension to be inserted into such hole. There is some divergence in the testimony about the length of the particular spoon used by the respondent in a way presently to be stated, but the length of that particular spoon handle is immaterial, though it is the personal view of the writer that one who handles dynamite with a spoon needs one with a long handle — the longer, the better. If authority is necessary for this judicial dictum, it maybe found in the Danish proverb to the effect that he who eats out of the same dish with the devil needs a long spoon. In the case at bar, it is not contended by respondent that he did not know the length of his spoon handle, that he complained of its length, or asked for one with a longer handle; and, moreover, the evidence shows that the depth of the drill hole was within the discretion of the operator and could be regulated so as to correspond with the length of his spoon, the use of which is now to be pointed out. This spoon was used to explore a drill hole where there had been a failed shot and remove therefrom both the burnt and unexploded powder, so that the hole might be reloaded or made safe. Sometimes there were crevices, seams or pockets in or crossed by these holes and the dynamite from the failed shot might get into them and could not be removed or detected by the spoon. These crevices, seams or pockets were found in what is known as “shelly” or
On the first day of September, 1900, of a Saturday evening, respondent had drilled and loaded a number of drill holes in the bench or face of his drift. At quitting time, he fired them. On Sunday no work was done in the mine. On Monday he worked in a different part of the drift. On Tuesday morning he commenced work anew at the same part of the drift in which he had been “breaking dirt” or ore on Saturday night. At this time he discovered that a shot, in a certain one of his Saturday night drill holes, hereafter named the “old hole,” had been a failed shot, and broke no ground. His present intention, as we understand the record, was to clean out this hole and put in a new charge to be fired that evening, or else make it safe. To this end, he explored the hole with his miner’s spoon. It should be noted that when driling the hole on the previous Saturday he discovered the ground, a foot or two in from the collar, and thence to the bottom or far end of the hole, appeared to be shelly and this became apparent from the coarseness of the cuttings from the drill. While spooning out the hole Tuesday morning, he discovered a choked condition from burnt powder and removed about a quart of such stuff. He also established the f aGt, first hinted at by the drill cuttings, that the ground through which his drill had passed was shelly. He cleaned out the hole, according to his story, as far back as the spoon would go, say, between four and five feet, but the evidence leaves' us in the dark as to whether he knew he had explored this hole to the bottom, in other
This was early in the morning at the commencement of his day’s labor. He was about to set his machine to bore a hole parallel with the old hole, when, according to his story, the superintendent appeared on the ground and there ensued a conversation which respondent gives different shadings to. The substance of it may be gathered from what he said at one point in his testimony, thus:
“Q. Now, Mr. Knorpp, since you have given the condition there, you may state to the jury, in your own way, everything that occurred on the morning of the 4th of September, when you were injured. A. Mr. Collins, the ground-boss for the company, showed me where to set up. He came and showed me where to set up my machine and drill to the right of this old hole. I was making preparations to set up and had my post up, and Mr. McBoberts came in the drift and advised me to change my position, and set to the left and drill across this old hole, and I told Mr. McBoberts at the time — I examined the ground, spooned the ground — spooned the hole, and found burned powder, also cavy in the shaft, and to my judgment it would be dangerous to drill there, and he said it was all right; to set up the machine and go ahead. And I set up the machine and drilled the first hole from the inside of the column or post, and swung the machine 'to the left and run the machine out on the arm and. drilled the starter, as we*653 term them, in the new hole; after running the starter in the new hole, I,went to Mr. Collins, ground-boss, and asked him to come and examine the ground. He came over and looked at the ground and said it was all right and go ahead. I then started the machine, and didn’t seem like but a very few minutes until the explosion occurred. ’ ’ Being pressed on what he said to Collins, he said he told him to come and see the “run of the hole.”
The last accurate vision this man had (or, for the matter of that, ever will have) was that of a tongue of fire shooting out, literally, like lightning, to lick him in the eyes and face. For a long time thereafter he was blind and had to be lead about. By and by, through delicate surgical operations, particles of dirt, sand and burnt powder were taken from the front of his eyes. His general health and strength were not impaired and his actionable injury, if any, was confined to his eyes and vision, with the acute and indescribable agony pertaining to a burning, traumatic injury to his eyes.One of the learned specialists, Dr. Tiffany, described the condition of his eyes to be a dense opacity of the cornea, also of the crystalline lens. That the iris adhered to' the capsule of the lens. That at first he could discemanobject passing before the right eye but not sufficiently to distinguish it. That the left eye had a mere perception of light. An operation called “iridectomy” was performed. That is explained to be that a piece of the iris was taken from each eye and the chrystalline lens removed from the right. It finally resulted that respondent, with the aid of glasses, could see to go about alone with his right eye. The extent of his vision in that eye was 20.70, while with the left eye he became able to count fingers one foot away and his vision was 1.200, and might be improved, possibly, by another operation. But the opacity remained and his injuries were lasting. As no question is made on the amount of the verdict or the extent of his injuries, this phase of the case need not be further dwelt on.
Going back a little in the story of the case, it substantially appears, not only that the angle or dip of the drill hole as well as its precise location are optional with the drill-man, but that on respondent’s theory he was ordered generally to drill at rig*ht angles, i. e., directly across the old drill hole. He did not construe this instruction as mandatory upon him to drill through the old drill hole in crossing it, or to make his hole at any given point. He conceived such a course, i. e., to drill through the hole, to be dangerous and exercising his discretion to disobey the letter of the command, he first drilled a hole, which he called a “lead hole,” across the old drill hole by shaping its course so as to run six inches below, thinking thereby to avoid the lurking danger, if any. The drilling of the lead hole was successfully accomplished. He then moved his drill to such a distance that another hole, contemplated, when completed would run across the line of the old drill hole about four feeet from its collar, and again adopted a similar angle and inserted his starter six inches below a horizontal plane running through the collar of the old drill hole. When the starter bit was run out, and he was about to change to his principal steel, he went to Collins, the ground-boss, and told him to come and see the “run” of his hole. Collins had been present at a prior conversation with McRoberts. ' Collins came, glanced at the work, made no inspection of the old hole then or at any time, and said “all right” and “go ahead.” Respondent says he relied on these orders
By one witness, Marvin, a discharged employee, whose deposition is in the case, respondent showed that he, respondent, had asked permission to fire a squib in the hole, which permission was refused him. But respondent himself had no recollection of making such request or being subjected to such refusal. He puts his case on the ground that the rule or custom forbade fireing in working hours and acted on the custom. By one of respondent’s witnesses, to-wit, his helper, Evans, it was shown on cross-examination by appellants’ counsel that he, Evans, who had also been injured and had a suit pending for his injury, had gone to respondent some three weeks after the accident and had inquired of him whether he had discovered burnt powder in the old hole at the time he had spooned it out and inspected it. Respondent told him that he had discovered no burnt powder at that time. In rebuttal, respondent denied making such statement to Evans. Based on these contradictions between respondent’s witness, Evans, and himself, and between respondent’s witness, Marvin, and himself, certain contentions are insisted upon by appellants that will be considered further on, if necessary.
We have prepared an outline sketch to accompany this opinion, which may aid somewhat in understanding the word picture of respondent and his witnesses. (It seems that the face of the drift was not even, but had been exploded into angles, so that, by proper shooting, dirt could be better broken. The scene is laid at one of these angles in the face of the drift.)
Referring to the above diagram, let ABC be considered such angle and the section of the face of the drift in question. Then the point D might be considered the place where respondent intended to drill on Tuesday morning but was prevented, as he says, by the superintendent.
Let the dotted lines EKF represent the old hole, and the dotted lines HU represent the first or lead hole drilled by respondent Tuesday morning at right angles to the old hole. On that hypothesis U would represent the collar of such lead hole, which was started six inches below-a horizontal plane passing through E,-the collar of the old hole. ■
Say the dotted lines, KI, represent the hole respondent was drilling when his steel cut to K and there exploded the old charge in EKF.
At the time of trial, the ground-boss, Collins, had disappeared and was not a witness. ■ The superintendent, McRoberts, testified in substance that he went down the shaft and into the drifts of the mine, as usual, Tuesday morning. That when he got on the ground he found respondent, with his machine already set up, drilling at right angles across the line of the old hole. That he noticed a yellowish substance had run out of the collar of the old hole, like molten tallow, or, as elsewhere described in the testimony, of the color of amber, indicated burnt powder. That he thereupon protested to respondent against his drilling across that old hole. His protest and the response of respondent thereto are formulated by himself, as follows:
“Q. I wish you would tell the jury where he was standing when you went to him that morning — when you first saw him that morning in the ground? You heard his testimony about moving from one point to another?' A. As near as I can remember — I suppose we may take this table to illustrate — when I got to Knorpp, I am. not sure about the time, but along about eight o’clock, between eight and nine o’clock somewhere — he was set up and he was standing back of his machine and it was running and his drill was pointed almost straight south as near as I can tell from going into the ground, and when I went there his machine was running and set so as to drill practically square in on the hole that had been drilled at right angles previously ; and I spoke to him very sharply, and I said: ‘ Bill, what in the devil do you mean by drilling in that hole when you know the powder has been burned in it?’ And he said, ‘The hole is all right and I know it*658 is all right. ’ And I said, “You ought not to drill there anyhow. ’ And he said, ‘I know the hole is all right. ’ And just then somebody called and said I was wanted on top. . . .
“Q. Did Mr. Knorpp tell you anything about having found burned powder in the hole ? A. He did not. He stated that they had examined the hole and cleaned it out and it was perfectly safe and clean. ’ ’
It was shown that McRoberts, the superintendent, was not an experienced miner and that respondent knew that fact, and that he went on top at once after his interview with respondent and was not present at the accident. It was shown on appellants’ side, and remained uncontradicted, that appellants paid more than customary wages in order to get proficient men — men with discretion arising from experience in handling-dangerous explosives in their work and skilled in mining. The case, too, went to the jury on unquestioned evidence showing- that the drill-man, if experienced and possessed of sound judgment, could tell better than any foreman or boss the condition of the inside of a drill hole, the condition of the ground through which a drill passed, and was a better, judge of the danger of pockets, seams and crevices in which unexploded powder might lurk. All the testimony tends to show that respondent knew that the old drill hole had been inspected by no one but himself. And all the testimony tends to show that neither the ground-boss nor the superintendent knew anything of the condition of the old hole except from the information given by respondent to them by word of mouth. This statement, however, must be modified by the inference arising from the superintendent’s own testimony, showing that he saw the stain of burnt powder in the mouth of the old hole, and further modified by the patent fact that both the ground-boss and the superintendent knew, as a visual fact, that there had been failed shot.
Assignments of error are predicated of the giving
On the foregoing statement of facts and issues, was the case entitled to go to the jury? And if entitled to go to the jury, was it put to the jury in correct form?
(1) When there is an issue as to whether a certain appliance or a certain plan furnished by the master to the servant is reasonably safe, one test, allowed by the law, is the use in that particular business, and, hence, testimony as to what is customary usage is directed to the issue and becomes of obstinate significance. Respondent insists this general rule authorizes the admission of evidence tending to show that the usual plan and use in the Joplin mining district were to detect the presence of live dynamite in a failed shot by firing a squib shot in the hole and exploding the remaining dynamite, if any there be, ambushed therein. To this contention appellants reply, in effect, that the test of general use or custom should not be applied in this case, because respondent knew the usage in this mine was not to fire such squib shots during working hours, and that knowing this usage he voluntarily assumed the risk by accepting, and continuing in, the employment of appellants. The evidence is all one way that the rule and custom in the Superior mine was not to' fire squib shots. The evidence is also all one way that the general custom in the Joplin district was to fire squib shots. Some of the witnesses say that express orders had been issued to fire no shots during working hours in the Superior mine. Other witnesses put it that it was the custom, ruling the operation of the mine, to fire no such shot during working hours.
It goes without saying that general principles of law may not be applied mechanically, but, in order to produce a just result, they should be applied in accordance with their underlying reason and with an eye to the shifting circumstances in judgment, since it is ax
But we are met with a singular condition of things in this case, viz: respondent himself disavowed having asked for permission to fire a squib in the old hole. He stands in his testimony upon the theory that he had inspected the hole with a spoon and had discovered a
We have no doubt about the proposition that respondent and his witnesses may not agree and yet, for all that, the case be a proper one for the jury, if there be competent evidence from any witness to entitle the case to go to the jury. A suitor is but a witness, after all. Time was when a party litigant was not entitled to testify and must rely solely upon the evidence of others. A suitor, being but a witness, may be allowed to have the common infirmities of his kind, e. g., lapses of memory, inability to see things precisely as others do, and may not hear or may forget things actually said or done. It would be a harsh rule that would cast a litigant because he did not agree in toto with his witnesses. Would it not be a premium on a forced agreement between witnesses, to announce or apply such a doctrine ? In fine, it seems to us that there may be too muck of a good tking in the way of agreement — so much, indeed, as to become a badge of suspicion of the
(2) Was there any case for the jury? The unbending rule is that respondent is entitled, on a demurrer to the evidence, to every favorable inference of fact naturally to be drawn from the evidence, and that, if the facts be disputed, the jury, and not the court, is the arbiter. So, too, the jury and not the court must judge of the weight of the testimony and credibility of witnesses. Hence, in determining the question now up, we must put away from us so much of the evidence of McRoberts as is controverted.
If, however,- the substantive facts are undisputed, or if reasonable men can draw only one inference from the facts proved, the matter may resolve itself into a question of law.
Attending to these guiding principles, we confront other rules of law, for instance, the master must furnish reasonably safe appliances to the servant and a reasonably safe place in which to work. As to this, all the books say that by a reasonably safe place is not meant an absolutely safe place, nor that the master becomes an insurer of the safety of the servant. Such a doctrine, applied to the everyday affairs of men, would smite business, in' workshops and mine, with incurable paralysis.
Another thing, it is fundamental that á master can not delegate his primal duties as master by a general order or rule and thus avoid responsibility. If the courts would tolerate such ready-at-hand scheme of easy
This is the way I long have sought,
And. mourned because I found it not;
for a cure-all for not a few of his ills lies in a stroke of his pen.
With this general proposition conceded, it is asserted by respondent that appellants could not delegate the duty of inspecting drill holes so far as to relieve them from liability for negligent inspection. But is it sensible, or will it do to say that an expert servant may not have delegated to him intermediate duties of detail pertaining to his oion labor, as, for example, the duty of inspecting his own drill holes and of taking care to ascertain danger and avoid causing accidental explosions? This precise question was before this court in Livengood v. Lead & Zinc Co., 179 Mo. 229, and Fisher v. Cent. Lead Co., 156 Mo. 479, and ruled against respondent’s insistence after full consideration. Indeed, •of all persons in the world, the drill-man, because of the law of self-preservation and because of his peculiar and personal knowledge of the hole, would be the most keenly alive to hidden peril and be the most likely to smell it out, i. e., would make the best inspector of his own drill holes. Respondent’s complaint of the method of inspection, therefore, is not well founded. His inspection of the old drill was the inspection of his master and he must not be heard to complain of the method, i. e., the spoon method, for it was in use to his knowledge ; nor of the character of the inspection, for it was his own act; and he may not complain that the master did not otherwise inspect the hole, because he knew and voluntarily adopted the plan of inspection by the drill-man; and what is more, he knew that no one had inspected that hole but himself.
Again, the servant assumes the ordinary, known risks incident to his employment — in this case, the man
But respondent did not assume the risk of any supervening negligence of the master, and this precise point is said to be the turning point in this case; for it is asserted by respondent that the master obtruded himself and negligently commanded him to do a certain thing in a given way and negligently gave him assurances of safety, upon which he relied. Rejecting the evidence of" appellants, wherein it is controverted, and attending to the evidence produced by respondent, it may be said that the command is shown and the assurance of safety is shown. The crucial point is, whether respondent could have relied upon such assurance. In other words, did he have the right to rely upon appellants ’ assurances, i. e., was it reasonable for him to rely thereon, and did he rely thereon?
If there could be two opinions among reasonable men about the reliance of respondent being reasonable, or existing as a- fact, then the case under respondent’s evidence was for the jury; otherwise, not. To this complexion the case has come and the point in hand, while exceedingly narrow and nice, lies at the root of the matter. It can be solved alone by considering the peculiar facts in judgment. Reliance is not a tangible fact that one can put his finger on, or see with his eye. It
On principle, we can not see why, if the interpreting acts are undisputed, the condition of mind may not resolve itself into a question of law. In other words, if the respondent’s acts show that he could not and did not place reliance upon the assurances of his master, the court would be within its province when it said there was no evidence of that condition of mind. Further, it looks to us like a truism that if one does an act, partly in reliance on his own judgment and partly in reliance upon another’s judgment, and if both be in fault and negligently pronounced, a resulting injury from such concurrent negligent judgments is not actionable.
In the light of these views, let us briefly recur to the facts and the allegations of the petition. The petition states that defendants negligently failed “to inform plaintiff of any and all latent dangers attendant on his said employment; . . . that of all of said defects and dangers referred to were known to defendants; . . . that the same were not known and could not by the exercise of ordinary care on his part have been known to plaintiff; . . . that all of the dynamite or other explosives in at least one of said drill holes had not been shot or fired off, of which fact this plaintiff was in ignorance; that defendants failed and neglected to inform plaintiff that all dynamite or other explosives in at least one of said drill holes had not been fired or shot off; . . . that plaintiff, relying on the superior knowledge and assur
In pleading plaintiff’s ignorance and defendants’ knowledge, the learned counsel for respondent doubtless had in mind pronouncements of courts in this class of cases, wherein there always appears an element of ignorance on the part of the servant and superior knowledge, necessarily implied, on the part, of the master directing the dangerous service resulting in injury. It is because of this superior knowledge as well as the superior position of the master that the servant, as a reasonable man, obeys the master and places rightful reliance on his superior position and superior knowledge. • The trouble in respondent’s ease is that he had the superior knowledge and the master, represented by McRoberts, was comparatively ignorant. As things go in this world it is not allowable for an experienced and trusted servant to say that he relied on assurances of safety from an inexperienced master, pertaining to a matter and condition he knew more about than the master, and had created himself. Conceding that the servant is subordinate and that his duty is to obey, yet there is no slavery in the relation of master and servant, and an experienced and trusted servant can be in no danger of reprimand or discharge, under the facts before us in this case, in exercising his own reasonable discretion. The truth is, respondent practically did exercise his own discretion. For instance, on his own judgment he elected to disobey his master. Literally he was ordered to bore across the old hole, but he did not construe this command literally. To the contrary, he bored underneath the old hole, at a distance beneath and at an angle selected alone by himself. There is nothing in the evidence from which we can infer that he might not as well have bored his new hole above the old hole, or back of the bottom of the old hole, where he had reason to believe the danger lurked. Fairly interpreted, the orders of the master pertained only
In what we have said we have referred to McRoberts as the alter ego of the master. We have done so advisedly, because the evidence does not bear out the theory that Collins directed respondent in boring the new hole. It is true that Collins was sent for after the lead hole had been bored, and the last one had been started, for a foot or so, and respondent ask-. -ed him what he thought of the “run” of the hole. Just what was in respondent’s mind, we may not know; what he said, we do know; and what Collins answered can not fairly be construed into an assurance of safety. Collins had not directed respondent to bore at that place; he had not inspected the old hole; nor did respondent tell him directly of the result of his own inspection. He told that to McRoberts and he says Collins was close by. When Collins said it was all right and to go ahead, his response must be referred to the run or direction of the hole as an ore-breaker, and not as an assurance of safety.
The case at bar is not only distinguishable from cases where the master had superior knowledge of latent defects and dangers, but it is also distinguishable from that class of cases where a servant in a sudden emergency has received a peremptory order from his superior requiring immediate obedience without time for deliberation or the exercise of judgment.
In conclusion, we may be allowed to say there is an unexplained mystery about this explosion, and it will not do to take a large sum of money from one man’s pocket and put it in another’s on a mere guess. Who knows whether there would have been an explosion if the drill had passed across the old drill hole, i. e., through it, in obedience to the letter of the command? Who knows there would not have been an explosion if respondent had bored a hole, as he set out to
Furthermore, in our opinion, under the facts of this record, there is no testimony fairly tending to show that respondent was coerced or constrained into working on that section of the face of the drift, at that time. For aught appearing here, in a drift with a face of sixty feet, he could have worked elsewhere during the day, and could have exploded the old hole with a charge of dynamite at the close of the day, if he had elected to do so or asked to do so. But, trusting as under the facts in evidence we are constrained to hold, his own judgment, his own inspection, and boring his hole substantially in a spot to suit himself and at an angle to suit himself, this accident occurred and, sympathize with him as we may, his case, in our opinion, should not have been submitted to the jury — the form in which the case went to the jury thus becomes immaterial and questions pertaining to the other instructions need not be considered. The cause is reversed.
