105 P. 724 | Mont. | 1909
delivered the opinion of the court.
This is an action for damages resulting from the death of Daniel O’Brien. The complaint, after setting forth the fact of O’Brien’s death, the appointment of the plaintiff as administrator of his estate, alleges: That during the lifetime of 0 ’Brien he had contributed to the support of his mother and other relatives; that on May 12, 1905, he was employed by the defendants Corra-Roek Island Mining Company, James Neill, and Alfred Frank as a miner and was working on the 1,500-foot level of the Corra mine; that on that day and on the 1,500-foot level,, and about forty feet from where 0 ’Brien was working by direction of the defendants, “the defendants had negligently and' wrongfully stored and were keeping negligently a large and dangerous quantity of dynamite, to-wit, about five hundred (500 lbs.) pounds. That on said day, while the defendants knew that they were negligently storing and keeping the said dynamite in said large and dangerous quantity on said level in said mine, the same exploded and killed said Daniel 0 ’Brien. That the death of the said Daniel O’Brien was caused proximately by the said defendants having thus stored negligently the
Apparently there was not any service of process upon defendant Neill. The mining company and Alfred Frank filed an answer, in which the death of O’Brien, while employed by the mining company and as the result of an explosion of dynamite on the 1,500-foot level of the Corra mine, is admitted. The answer also admits the corporate existence of the defendant company and the representative capacity of the plaintiff, but denies that O ’Brien was employed by, or was in the employment of, the defendant Frank. There is then a general denial of all the allegations of the complaint not specifically admitted or denied, and pleas of contributory negligence and assumption of risk. The allegations of these special pleas were put in issue by a reply. The cause was tried to the court sitting with a jury. At the conclusion of plaintiff’s case the defendant Frank interposed a motion for a nonsuit as to himself, and the motion was granted. A like motion made on behalf of the defendant mining company was overruled, and that company then introduced its evidence. When the evidence was concluded, the defendant mining company moved the court for a directed verdict, which motion was denied. The jury returned a verdict in favor of the plaintiff and against the defendant mining company, and from the judgment rendered thereon and entered, and from an order denying it a new trial, that defendant appealed. The specifications of error relate to the refusal of the trial court to grant the mining company’s motion for a nonsuit, its motion for a directed verdict, and its requests for certain instructions.
From the entire record certain facts are gathered—facts about which there is not any dispute, and some of which are useful only to illustrate the situation at the time of the accident. Extensive mining operations were carried on in the Corra mine.
In addition to such of the foregoing facts as were testified to by his witnesses, the plaintiff relied for recovery upon the evidence given by Frank D. Melville, a timberman, and Wilfred Russell, a mule driver, each employed at the 1,500-foot level at the time the explosion occurred. Melville testified that on the morning of May 12 he noticed three boxes of dynamite in the new magazine; that there were two, three, or four boxes stored there all the time—“I don't think there were ever less than three or four boxes stored there”—that on the morning of May 12 he also noticed an old powder-box containing a quantity of caps in this magazine with the dynamite; that it was the custom of the defendant company to send to the new magazine at one time dynamite in quantity sufficient for the day and night shifts; that there were four machine drills at work in the stopes east of the point of intersection of the cross-cut and vein; that he did not know how many machines were employed west of that point, but he thought more men were employed there than in the east stopes; that the powder supply in the new magazine was for the miners in the west stopes as well as those in the east stopes,
Russell testified that six or seven minutes before the explosion he noticed five or six boxes of dynamite in the new magazine; that the powder and caps were kept in the same place in the new magazine; that there were two boxes of powder there all that day; that he hauled four more boxes to that magazine after noon on the day of the explosion; that during the day powder sufficient for both the day and night shifts was stored in the new magazine; that he saw some caps at the place where the powder was kept, a couple of handsful—“they generally had a couple or three boxes—200 or 300 caps”; that these caps were brought down in the original tin boxes and emptied into powder-boxes; that on the afternoon of May 12 he saw the powderman at the new magazine picking small particles of rocks from among the caps there in the old powder-box; that there was not any covering over this new magazine; that it ivas possible for these caps to be exploded by rocks falling upon them; that caps exploded
The motion for a nonsuit in favor of the defendant company is as follows: “We also move for a nonsuit as to the defendant Corra-Rock Island Company for the reason that there is no evidence sustaining the allegations of the complaint as to the proximate cause of the injury. There is no evidence here that the proximate cause of the injury was the storage or keeping of powder in a negligent or any other manner. The evidence shows that powder was kept on the 1,500-foot level, or was there at the time of the accident, and was kept there for temporary purposes to meet the requirements of the miners who were working on the levels and in the stopes. ’ ’
The evidence of the mining company, so far as it tended to establish a defense or to contradict that produced by the plaintiff’s witnesses, is, in substance, as follows:
Coats, who was the powderman on the 1,500-foot level at the time of the explosion, testified that just before noon on May 12 he was at the new magazine, and there were only a few sticks of dynamite there then, not as much as one full box; that two boxes were taken there about 2 o’clock in the afternoon; that the caps were kept fifty feet or more from the powder; that he did not see any caps near the powder on that day; that he never knew of caps and powder being kept together; that he did not recollect of picking particles of rock from among the caps upon the day of the explosion, and is certain that he did not do so.
Shea, who was day shift boss at the time of the explosion, testified that on that day he noticed a few boxes of powder in the new magazine; that he saw two boxes sent in there that day; that the caps were kept seventy feet away from the powder; that he never noticed caps kept with the powder; that he seldom went to the new magazine; that it was the duty of the powder-man to supply powder and caps; that two boxes of powder were necessary for one round of blasts; that they never kept in the new magazine any more powder than was necessary for the immediate necessity of one shift then at work; that this new magazine was moved from its position near the station to this
Barry, who was night shift-boss and worked until 2 or 2:30' A. M. of the day of the explosion, testified that there was not much powder left in the new magazine when he quit work, there might have been a few sticks, but they were generally short of powder; that the caps were kept from fifty to seventy-five feet from the powder; that he never found powder and caps together, and never knew of the rule against keeping them together having been violated in the Corra mine. He did not know anything of the conditions when the day shift went to work.
Alfred Frank, a mining engineer, who had general supervision of the work in the Corra mine at the time of the disaster,, testified that he went through the workings about once a week; that he never knew of the rule against keeping powder and caps together having been violated in the Corra mine; that, if there had been such a violation, he would have noticed it; that he knew they were not kept together; that there were frequently empty powder boxes about the new magazine. In his opinion there was in fact an explosion at each of two different places, about twenty feet apart, one at the new magazine and one at the manway.
There is not any contention made that the evidence which tended to show that the caps and powder were kept together was; not within the issues made by the pleadings. Counsel for appellant do not urge the admission of that evidence as error, and. cannot do so, for the evidence was admitted without objection,, and the complaint will now be treated as if it had been amended to admit the introduction of that evidence, and the first sentence in the motion for a nonsuit above may be disregarded., There is a substantial conflict in the evidence as to whether-the powder and caps in fact were kept together; but counsel for-
But it is earnestly urged that the evidence is insufficient to support the allegation of the complaint that the defendant negligently kept a large and dangerous quantity of dynamite in proximity to the place where O’Brien was required to work. It is said that the testimony of the witness Melville upon that point is not entitled to serious consideration, for the reason that, while on direct examination he testified that he saw three boxes-of dynamite in the new magazine in the morning and at noon of May 12, on- cross-examination he was forced to admit that he did not examine the boxes, and, so far as he actually knew,, they may have been empty. The testimony may or may not have been entitled to very great weight; but we are not prepared to say that it does not have any evidentiary value whatever. On his direct examination this witness said: “I saw three' boxes of powder stored in that magazine on the morning before O’Brien was killed.” On cross-examination he said: “As I
Next it is insisted that the evidence given by the witness Russell was hearsay. During the course of his examination he said: “I hauled four boxes of powder that day a little after dinner. Did not put them on or take them off of the ears. We had loaders and timbers. I don’t know who put the powder in. It must have been the loaders. They told me there were four boxes.” Further on he testified: “I did not put the four boxes in; just brought them in to the cars, and they were run in, but I don’t know who took them off. All I did was to bring the powder-boxes in the ears. I knew where it was going. It was right after dinner that I took in four boxes of powder.” On 'Cross-examination he said: “On the 12th of May, a little after noon. I hauled four boxes of powder to the end of the drift. =* * * i got these four boxes at the station, and took them
Assuming, then, as we do, that there was some evidentiary value to the testimony of witnesses Melville and Russell, and that its weight was for the jury to determine, we are confronted with the question: Is the evidence given by these witnesses, supplemented by the facts which are not disputed, sufficient to go to the jury to prove, or tend to prove, the negligence of the defendant company? The measure of the master’s liability to his servant in a case of-this character is to use reasonable care to provide the servant with a reasonably safe place in which to work, due regard being had to the nature and place of the •employment and the agencies actually used. (Reino v. Montana Mineral Land Dev. Co., 38 Mont. 291, 99 Pac. 653; Anderson v. Northern Pac. Ry. Co., 34 Mont. 181, 85 Pac. 884; Longpre v. Big Blackfoot Milling Co., above; Hill v. Nelson Coal Co., 40 Mont. 1, 104 Pac. 876.)
Counsel for appellant company cite Sowers v. McManus, 214 Pa. 244, 63 Atl. 601. We agree fully with the doctrine announced in that case, that: “As the mere possession of dynamite -to be used for a lawful purpose is neither unlawful nor negligent, where one is injured by the explosion of it when stored, the burden rests upon him, as in other eases of negligence, of proving either the specific act or negligence that caused the explosion, or such circumstances surrounding it as would justify the inference that the degree of care required by the law had not been observed.” In that case it was charged that the defendant company was negligent in storing a large quantity of dynamite near the plaintiff’s- premises. There was but a
The case of Tissue v. Baltimore & Ohio R. Co., 112 Pa. 91, 56 Am. Rep. 310, 3 Atl. 667, presents facts very similar to those before us.. There the railroad company had constructed a powder-house near the railroad tracks, and stored a large quantity of dynamite in it. Tissue, a flagman employed by the railroad company, who had nothing whatever to do with the storing or use of the explosive, was killed while in the discharge of his duties near the powder-house by an explosion of the magazine. As in this case, so in that one, the immediate cause of the explosion was not made to appear. The court said: “As it is impossible to tell what was the immediate cause of the explosion, it would be by no means fair to charge it to the negligence. of anyone.” After reciting a matter which was not considered material, the court further observes: “The inquiry is rather as to the negligence of the company in permitting so great a quantity of dynamite to be placed in such a position that an accidental explosion of it might result in death or injury to its servants”—and then proceeds to announce its conclusion in the following vigorous language: “Whilst it is true that the master does not warrant the absolute safety of those whom he employs to do his work, yet, as we held in the ease of Green & Coates Streets Passenger Ry. Co. v. Bresmer, 97 Pa. 103, he is bound to take heed that he does not through his own want of care expose his servant to unnecessary risks or dangers, either from the character of the tools with which he supplies him, or the place in which he requires him to operate. As the question growing out of what is here stated is one of fact, it can only be determined by the verdict of a jury. Ought the company’s superintendent to have known that in placing the magazine where it was placed he was exposing the men engaged in operating the road, as well as others, to a danger to which they ought not to have been exposed? * * * The act of putting the magazine where it was may have been prudent, or at least not unreasonably imprudent, and the explosion may have been
Instruction No. 3, offered by the defendant company, was also properly refused. Standing alone, the first sentence correctly states the law as declared by this court in Olsen v. Montana, Ore Pur. Co., 35 Mont. 400, 89 Pac. 731; but the vice of the instruction as a whole is found in the concluding sentence: “‘And, unless you are able to find the cause of such explosion without resorting to suspicion, conjectures or probabilities, your verdict must be for the defendant.” Instruction No. 11, refused, is couched in similar terms. If given, these instructions would have amounted to a direction to the jury to find for the defendant company, for there was not any evidence as to the immediate cause of the explosion. The evidence does show, however, that deceased did not in any manner contribute to causing the explosion, as he was working on the fifth floor and forty feet or more from the powder. If the jury found that the defendant company was guilty of negligence in storing the powder where it was stored, and knew, or by the exercise of ordinary care ought to have known, that caps were kept with the powder, and that but for such negligence the accident would not have occurred, then, even though the negligence of a fellow-servant of O’Brien caused the explosion, the defendant company would not be entitled to escape liability. (Meisner v. City of Dillon, 29 Mont. 116, 74 Pac. 130.) And the same result would be reached if the cause of the explosion could not be attributed to the negligence of anyone; and therefore instructions Nos. 4 and 6, requested by the defendant company, were properly refused.
The court was also asked to charge the jury that if it was found from the evidence that O’Brien knew, or by the exercise of ordinary diligence might have known, that dynamite was
Finally, it is urged that, if the company promulgated a rule against the keeping of powder and caps together, it thereby fully discharged its duty toward the employees, and O’Brien assumed the hazard of the observance of the rule by the miners, his fellow-servants, with whom rested the duty to observe and carry out the rule. Such a contention cannot be maintained, for it implies that by the mere promulgation of a reasonable rule the master may escape the consequences of his own negligence. In 1 Labatt on Master and Servant, section 210, it is said: ‘ ‘ The test of the sufficiency of a rule is that it shall be reasonably well calculated to secure the safety of the employees if it is faithfully obeyed.” (Italics ours.) And again, in section 214: “An employer does not discharge his whole duty by
In view of the evidence in this case which tends to show that for a month or more prior to the date of the explosion there was a flagrant disregard of the rule against keeping powder and caps together, for which O’Brien was not in any sense responsible, we think it was a question for the determination of the jury whether the defendant company knew, or by the exercise of reasonable care ought to have known, that the rule was not being observed; or, in other words, it was for the jury to say whether the defendant company exercised reasonable care in the promulgation and enforcement of its rule. „
We do not find any error in the record. The judgment and order are affirmed.
Affirmed.