137 Tenn. 261 | Tenn. | 1916
delivered the opinion-of the court.
This action was brought in the circuit court of Knox County to recover damages for the alleged negligent hilling of plaintiff’s intestate, Howard J. Lively, in the shaft of the defendant’s zinc mine. There were verdict and judgment in the trial court-in favor of the defendant, and an appeal was prosecuted to the court of civil appeals. In that court the judgment of the trial court was reversed, and an order entered remanding the case for a new trial. The controversy was then transferred to this court by the writ of certiorari.
Though, the questions made are very numerous, the controversy lies within a narrow compass.
The defendant had sunk a shaft to a depth of about sis hundred feet, the greater part of the way through rock. At the foot of this shaft drifts were started east and west. The eastern drift had attained only a few feet, while the western drift had extended about one hundred and fifty feet, and in this one an upraise had been started for the purpose of making a new shaft for an additional air passage. The main shaft, the only one completed, was five feet wide and about twenty-two feet long, and was divided into four compartments, one for a latterway required by our statute, two for the passage of ore buckets to transport the product to the surface, and one for the as.cent and descent of the miners. This latter division of the shaft was fitted with an elevator. Our statute requires that the elevator, or carriage used for lowering or hoisting persons, shall be fitted with an improved safety catch, and a sufficient metal covering overhead; that sufficient flanges shall be attached to the sides of every drum, 'and every machine used for lowering and hoisting persons into and out of a mine; that adequate brakes shall be attached
The duty to comply with such and similarly specific provisions of a statute designed as precautions against accidents and injuries is absolute, and they cannot be satisfied by a mere approximation, or by the exercise of “reasonable diligence,” or “ordinary care” in an effort to comply. Sundry applications' of the principle may be found in the following cases: Deserant v. Cerillos Coal Co., 178 U. S., 410, 20 Sup. Ct., 967, 44 L. Ed., 1127; Chicago, B. & Q. R. Co. v. United States, 220 U. S., 557, 31 Sup. Ct., 612, 55 L. Ed., 582; McDaniels v. Rogle Mining Co., 110 Mo. App., 706, 85 S. W., 679; Little v. Norton Coal Co., 83 Kan., 232, 109 Pac., 768. All of the preceding requirements were strictly complied with, and there is no complaint on that head.
The burden of the controversy is made to rest on certain general language contained in the section in which the foregoing specific provisions subsequently appear. That language reads:
“Persons employed in such mine shall be lowered into and ■ out of the mine by machinery; and when employees are lowered into said mine at the main outlet, the escapement shaft shall.be fitted with [safe] and available machinery. . . . The hoisting machinery . . . used for lowering the employees in*267 to and out of the mine shall be kept in a safe condition.” Acts 1915, chapter 169, section 27.
The . argument of the very able counsel for the plaintiff bears mainly upon the meaning of the word “safe.” In so far as safety could be attained by compliance with the specific requirements that follow in the succeeding parts of the section, it was, as we have already stated, satisfied by rigid compliance. But it is insisted, if we understand the position of the .learned counsel, that the word “safe,” occurring in a statute, imports not only a compliance with .the specific provisions already mentioned and the others referred to; but something in addition thereto, and means' a degree of efficiency higher and stronger than that which the common law imposes on the master, in the furnishing of safe tools, machinery, a safe place, etc., to which we shall presently advert; that if something else was needed to make the cage or elevator “reasonably” safe, as for example the attaching of two additional doors, they should have been attached. So the controversy turns upon the meaning of the “reasonably safe,” the decision of which we shall postpone until we shall have stated certain additional facts, and also the charge' of the court.
The elevator was securely fastened to uprights in order to. insure its ready passage up and down the shaft. It was closed on two sides with steel plates. On one of the other two sides there was a rod or bar about three or three and one-half feet from the
The uncontradicted evidence is that the elevator was of the same kind as that used generally over the country in well-managed ruines of the same character; although there is evidence that in some mines all four sides are closed with doors, or with lattice work either of wood or of woven wire. It is proven- in like manner that the shaft is furnished with timbers on the inside in a manner similar to that generally used in well-managed mines of a like kind over the country, and there is no evidence to the contrary; hut there is evidence to the effect that if the shaft were completely boxed in, it would be safer for the miners ascending and descending, because smoother, and less likely to catch the clothing of any occupant of the elevator in case he should lean or fall to one side or the other, the-walls being about four inches distant from the elevator; but along with this evidence it is proven that it would be extremely difficult to • inspect the timbers, that there would likely be much'rotting, and that this lining would probably fall and do considerable injury. It is shown that the timbers are inspected every day; that with the lining, or boxing referred to there could be no such inspection.
After quoting the portion of the statute which we have set out supra, the trial judge proceeded:
“And it may be further said in this connection that the defendant company was required to construct a reasonably 'safe shaft; elevator ' shaft. X instruct you that the meaning of this law as applicable to this case is that it was the duty of the defendant company to provide a. reasonably and ordinarily safe elevator and shaft for carrying plaintiff’s intestate as well as other employees out of said mine. The determinative question in this case is, Were said elevator and shaft safe according to the intent and meaning'of said statute or law? If it was there can be no liability in this case; if it was not then the defendant company is liable in damages for 'the death of plaintiff’s intestate, and you should accordingly so find. In considering and determining this question, I instruct you that if said elevator and shaft were in all respects, or more particularly in the1 respects complained of, up to' the ordinary and usual standard of usage and safety, such as were in use- generally by well equipped, -regulated and operated mines of this character and presented no inherent and flagrant dangers such as must have been obvious to defendant company, and were such as any ordinarily cautious and prudent person would use in the operation of a mine of like character and*271 like condition, then I charge yon that the defendant company had sufficiently and properly complied with the requirements of the law, and cannot be said to have been gnilty of negligence in connection with the death of plaintiff’s intestate, therefore conld not he held liable in damages, and yon should find accordingly and report as your verdict that yon find for the defendant. If upon the other hand yon find that said elevator, or shaft, was in any respect not up to the ordinary standard of usage and safety as hereinbefore defined, in that event the defendant company was guilty of negligence in not complying with the provisions of the statute requiring a reasonably safe elevator and shaft, and if the death of plain-, tiff’s intestate resulted therefrom, that is from plaintiff’s negligence, defendant compány would be' liable in damages and you should so find.
“To put the matter differently, if you find that-said elevator and shaft at the time of said accident were such as were in common use throughout the country by well regulated and operated shaft mines of the same character, and the defendant’s elevator and shaft were thus reasonably free from flagrant and obvious dangers such as would be open and obvious to defendant company, then no more was required of defendant company, and there could be no liability in this case, and your verdict would be for the defendant ; but if you should find that said shaft and elevator were the same or substantially the same as ordinarily in use by well regulated and operated*272 mines of the same character, bnt notwithstanding the fact that they were the same, or substantially the same, if yon further find that defendant’s said shaft and elevator were so inherently and flagrantly dangerous as that, if at all, as that the same must have been obviously so to defendant company and plaintiff’s intestate was killed as a direct and proximate result of such dangers, if any, defendant would be liable.
“Now, I may say further in this connection, as respects the character of instrumentalities the defendant company was required to use: When I refer to or speak of that in ordinary use by well regulated and operated mines of the same character, and that was what was required of the defendant company, that does not mean necessarily the very latest and most improved devices and appliances of elevator and elevator shaft; it means such as were in common and ordinary use generally throughout the country by mines of a similar character.”
We are of the opinion that the charge was correct. It recognizes the duty of the mine owner to make the appliances safe; not merely to exercise reasonable diligence to make them safe, but to make them safe. The question turns wholly upon the meaning of the word “safe.” What meaning should be ascribed to this word? When a term having a well-recognized meaning in the common law is used in a statute that meaning will be given it in construing the statute, unless a different sense is apparent from
It is properly conceded by counsel for plaintiff that the word “safe” does not purport absolute safety, but only reasonable safety, and this finds the statute in accord with our authorities expressing the common-law rule as to the obligation of- the master in respect of furnishing tools and machinery. As said in Morriss Bros. v. Bowers, 105 Tenn., 59, 58 S. W., 328:
“The employer is not an insurer or guarantor of the safety of the tools, machinery, or premises, but the measure of his responsibility is to see that they are reasonably safe for the use of the employees.”
, “We find from a review of the authorities that the words ‘safe’ and ‘care’ and ‘safe place’ are frequently used interchangeably with ‘reasonably safe,’ ‘reasonably safe place,” and ‘reasonable care.’ ‘Safe’ and ‘unsafe’ are words frequently used in comparison by courts in discussing the question of a reasonably safe place, and evidently without any intention of changing the well-established rule of reasonable care or a reasonably safe place. ’ ’ •
These authorities fully cover the point, ■ and show that the term ‘ ‘ safe, ’ ’ when used ' in respect of appliances to be furnished by an employer to an employee, always means, except in so far, of course, as affected by the terms of a' statute, “reasonably safe;” and that “reasonably safe” means such tools as are in general use among employers of ordinary caution and prudence in the same line of business under the same circumstances.
We may add, however, that the master has the right to choose between different kinds and types of implements in' such general use, and is not liable because some other style than that adopted by him may be found safer. The authorities on this point are collected in an elaborate note in 6 L. R. A. (N. S.), 493, 499. See Washington & G. R. Co. v. McDade, 135 U. S., 551, 570, 10 Sup. Ct., 1044, 34 L. Ed., 235; Shadford v. Ann Arbor St. R. Co., 111 Mich., 390, 392, 393, 69 N. W., 661; Richards v. Rough, 53 Mich., 212, 216, 18 N. W., 785; Kehler v. Schwenk, 144 Pa., 348, 22 Atl., 910, 13 L. R. A., 374, 27 Am. St. Rep.,
In our latest authority upon the subject in this State the effect of general usage is fully recognized. In that case it is said:
*277 “When such proof of conformity to customary usage is made by an employer, there is made a prima facie case of nonliability; nothing else appearing. This case is, however, subject to be rebutted by the plaintiff employee showing by proof that the appliance where set for use or the place of work was one so inherently and flagrantly dangerous as that it must have been obviously so to the employer.” Sanford Day Iron Works v. Moore, 132 Tenn., 709, 718, 179 S. W., 373, 375.
This qualification was recognized in the charge which the trial judge gave in this ■ case, as is perceived from the excerpt which we have made. In accord with this qualification are Stiller v. Bohn Manufacturing Co., 80 Minn., 1, 82 N. W., 981; Towns v. Vicksburg S. & P. R. Co., 37 La. Ann., 630, 55 Am. Rep., 508.
It is insisted in behalf of the plaintiff that the requirement of chapter 237, Acts 1903, to the effect that those operating mines in the State shall employ a foreman bearing a certificate from the designated authorities of the State showing a fitness for the performance of his duties, was disregarded. The breach of duty is said to consist in the fact that there is no competent evidence that the foreman did have a certificate, and if there be such competent evidence, still it is shown that he was wholly under the control of the defendant’s superintendent, and therefore the case is the same as if he had no certificate at all. The question is immaterial, because there is no evi
The court of civil appeals reversed the judgment of the trial judge on the ground that the mine was not properly ventilated. There is no evidence in the record to sustain this holding. As already stated, the shaft' had just been completed, and the drifts from the bottom of the shaft had been driven only a short distance. It was impossible to construct an air shaft until the main shaft had been sunk, but there was no gas in the mine, and the smoke generated by the explosion of dynamite in the blasting of rock had its exit upward through the four orifices of the shaft which, as we have said, was five feet by twenty-two feet. In addition, a- fan was in operation in the mine, and compressed air was conveyed through pipes down into the mine. There is no suggestion in the record that any other devices should have been used. It was only a question of time for the escape of the smoke, and the miners were not required to stay in the mine when the smoke was too dense. They had a right to the use of the elevator to ascend, and did so use it.
Another ground on which the court of civil appeals reversed the judgment was that the deceased was inexperienced, and was not properly warned of the danger. The evidence shows he had had considerable experience in other mines, and there is no evidence to the effect that he was not warned of such dangers as existed. '
Error is assigned on the alleged action of the trial judge in admitting the evidence of one Pearl Epperson, to the effect that the elevator in question was as good as any, provided the chain was up. It is said that this invaded the province of the jury, hut there was no exception offered, on the trial, to this evidence. The counsel simply said, “I object,” and stated no reason, and the trial judge was not asked to rule upon the point, and did not rule on it.
There are a few other assignments, but they are immaterial.
There is error in the judgment of the court of civil appeals, and it is reversed. There is no- error in the judgment of the trial court, and it is affirmed.
The plaintiff will pay the costs of the cause.