110 Wash. 5 | Wash. | 1920
Suit for personal injuries occurring in a mine.
At the close of plaintiffs’ case, the defendants moved for a nonsuit, which was granted; later the court, believing that it had erred, granted plaintiffs a new trial. The defendants have appealed.
The facts are substantially as follows: The mine in which the respondents were injured was worked by driving tunnels into the mountain side until the ore body was reached. The ore vein was then mined upwards towards the surface of the mountain. The vein stood at an angle of about seventy degrees. The ore was mined by driving chambers, called “uprises.” The top, or ceiling, of the ore body is generally spoken of as the “back.” These chambers are usually about nine feet high. At the time of the injury in question, the uprises extended about fifty feet and there were five chambers therein. The ore is blasted down and is removed, and upright posts, about nine feet in length, are set and a floor placed on top of these posts. There are three openings in the floor, the center one of which is. a chute through which the ore is sent to the bottom of the mine. When the floor has once been built, further blasting takes place and the ore from the ceiling or back of the vein drops down on the floor, and when there are some twelve feet of ore on the floor, the blasting stops and the ore is put down the chute. As each chamber is completed it is permanently timbered. Two shifts work in each chamber; one at night and the other during the day. Respondents had the day shift. The injury in question occurred in the fifth chamber. For two or three days blasting
When the night crew started to work, it was their duty to make an inspection of the exposed walls of the chamber to see whether or not any loose earth or rocks were likely to fall upon them. This inspection is done by sounding the sides of the chamber with a bar of iron or steel. If any loose rock or material is struck by the bar it will sound hollow and that would indicate that it is likely to fall. If the wall is solid it will give the bar of iron a firm, solid ring. Any material which the inspection indicates is likely to fall is barred down by the miners. It was the duty of the respondents to make a like inspection when they went to work. When they went to work on the morning of the day they were injured, they found that the distance from the floor to the ceiling, or back, was some seventeen or eighteen feet. They at once inspected the chamber by sounding it and barring down, until they believed they had barred down all the material that was loose. So much of the ore had been removed by the night shift that they could make an inspection of only about nine feet of the walls because they could not reach higher than that. They spent about an hour and a half making this inspection ; they then commenced mucking out, and had been at that work an hour or more when a large rock fell on them from the hanging wall and each was severely
The respondents were experienced miners. They had nothing to do with the timbering of the mine; that duty devolved upon certain other employees. They were unable to tell from what portion of the hanging wall the rock which injured them came.
The reason the nonsuit was set aside and a new trial granted was stated by the court to be as follows:
“In granting the nonsuit in this case I was of the opinion that the minds of reasonable men could not differ in reaching the conclusion from the evidence that the rock which injured plaintiffs came from the nine foot area. In arriving at that conclusion, I overlooked the inference of the fact (or presumption of fact) that the rock came from above the nine foot area, which the jury would be entitled to consider by reason of the plaintiffs ’ testimony of carefully inspecting and sounding the rock in the nine foot area.”
In their brief, respondents assert that, while the court was right in granting the new trial, it reached its conclusion by false reasoning. They contend that the new trial was properly granted upon the theory that defendants were obliged to take all reasonable precautions to make plaintiffs’ working place safe.
“Mining is known to be dangerous work. Respondent admits that he knew this, that he knew there was more or less danger • from falling rock, that ‘ air-slacking’ was constantly going on, which loosened the*11 rock overhead and made it more dangerous from day to day. As a ‘mucker’ it was necessary for him to do much of his work ahead of the timbering—that is, he must remove the ore thrown down by the blasting, before the timbers could be placed in position to protect him. The very nature of mining is such that the working places of the miners and ‘muckers’ are constantly undergoing changes. These changes are necessarily accompanied with dangers to the workmen notwithstanding careful inspection and protection by the master. ’ ’
In Cully v. Northern Pac. R. Co., supra, this court said:
“The appellant seeks to invoke the rule in this case that it is the duty of the master to furnish the servant with a safe place in which to work. This rule, however, has no application to this class of employment. ’ ’
The court there quotes the following from a Wisconsin case:
“The place to work is being changed constantly, and is necessarily incomplete and dangerous; and the employe knows it, and accepts such risks as are ordinarily present in such operations.” Kath v. Wisconsin Cent. R. Co., 121 Wis. 503, 99 N. W. 217.
In the case of Jones v. Florence Min. Co., 66 Wis. 268, 28 N. W. 207, 57 Am. Rep. 269, the court said:
“But the danger resulting from leaving loose stones or ore in the roof or sides of the mine is a danger which the - employer may well impose the duty of guarding against upon those- working in the mine. Such danger is the direct result of their operations, and they are always on the ground, and have better facilities for knowledge when a danger of that kind exists, and for removing the same, than the pit boss or captain of the mine, and there would' seem to. be no ground for holding that the owner of the mine may not impose such duty upon the miners themselves.”
We are clearly of the opinion that a new trial conld not properly he granted upon the theory advanced and argued by respondents. Nor was the court justified in granting a new trial upon its own theory, to wit, that the jury had a right to consider whether or not the rock came from above the nine-foot area which the respondents were able to inspect. There is no testimony in the record tending to indicate that the rock came from above the inspected area. The respondents themselves did not know where it came from. The only witness who undertook to testify on that question was Fitzpatrick, who said that the rock came from “about the bottom of the stope; was about three feet above the timbers, the hanging wall,” and that “it seemed to be about shoulder high,” and that it was “about four feet up from the floor.” In addition to this, it is shown that it was the duty of the night crew to inspect and bar down those portions of the walls they found exposed. When they went to work, there were only some six or seven feet between the top of the ore on which they stood and the ceiling or back; It must be presumed that the night crew properly inspected these portions of the walls. It would, therefore, conclusively appear that the rock fell either from that portion of the hanging wall which had previously been inspected by the respondents, or from that portion near the floor and against which the ore had rested. It was their duty to inspect and bar
We are of the opinion that the trial court properly granted the nonsuit and erred in granting a new trial. The judgment is reversed, and the cause remanded with instructions to dismiss.
Holcomb, O. J., Mount, Tolman,' and Fullerton, JJ., concur.