255 F. 821 | 8th Cir. | 1919
About 5' o’clock in the afternoon of March 16, 1916, Carlos Rúas, Jr., a young man 20 years of age, and Manuel Antonio Ropez, a youth 17 years of age, employés of the Ozark Smelting & Mining Company, a corporation, were directed by its night foreman to go- to chute 802a and shovel ore into it, Chute 802a was from 30 to 50 feet in length. It extended in a line substantially straight at an angle of about 45 degrees from the eighth level of the Ozark Company’s mine, where that company was mining ore, to a level below where the ore was loaded into cars to be carried away. There was a door or gate at the lower end of the chute which could be so opened and closed as to permit a carload of ore at a time to run from it into a car. The chute was used to lead the ore from the eighth level to the place of loading it upon the cars. If the chute was full of ore or nearly so, and an employé was at work upon this ore or near the upper end of the chute and the door or gate was opened to load a car, the ore in the upper end of the chute would settle down slowly into the chute, but not in such a way as to endanger the workmen. There were 30 or 40 chutes of this character in this mine; some of them were straight, and some were crooked. Sometimes the ore in one or more of these chutes would form a jam part way down the chute, leaving the lower part of the chute empty, and the company had an employé whose duty it was to break such jams and let the ore down to the gate or door.
At the time the order to shovel ore into chute 802a was given to the young men, the upper end of the chute was full of ore, and it was piled up from iy2 to 2y2 feet above its upper portal. The testimony was conflicting whether the natural inference from the fact that the upper end of the chute was full of ore was that it was full from the door or gate at its lower end, or that the ore was congested at some point above the door or gate, leaving the lower portion of the chute empty. The upper mouth or portal of the chute was in a stope on the eighth level where the company was taking out ore, and on one or two sides of this mouth the face of the ore in place was so near to it that when the blasting was done some of the ore would roll down into or upon the portal of the chute. Sometimes when the ore became congested in a chute it would suddenly give way and the ore would run down the chute so fast as to swallow up and kill a man working upon the ore in or on the upper end of the chute, or near enough to be drawn into it, as the ore ran down from the sides of tire stope above it.- This was what happened to Rúas and Ropez within an hour or two after they went to shovel coal into the chute. No living witness of the accident remained, but the dead bodies of these young men
After the foreman had testified that, at the time he sent the deceased to their work on the day of their death, he simply told them to go to the chute and shovel ore into it, he answered in the affirmative this question of one of the counsel for the company:
*824 “Did you at that time, or at any previous time, call their attention to the fact that it was dangerous to step up on an ore pile that was over a chute that was congested?”
In answer to like questions he testified that at the time he employed Lúas he told him to be careful of the chutes because chutes would swallow men, that he explained to him that chutes sometimes or quite frequently congested or choked up, and that that was the time they were dangerous, and that he gave Lopez the same warning when he was employed, but, when asked by counsel for the plaintiffs below to tell what warning he gave Lopez when the latter went to work for him, his answer was:
“I told him to be careful in different places, different rocks that might come down, and to he always careful in the chutes, that chutes swallowed men because other times men have been swallowed in that mine the same as the two; that is all.”
If that was all, it was clearly an insufficient warning, and he had already testified that he gave the same warning to Lopez that he did to Lúas, and, if that was true, the warning to Luas was insufficient. Whether his testimony in answer to the questions of counsel for the company or his testimony in answer to the request of counsel for the plaintiffs, to tell just what he told Lopez, was true, was clearly a question for the jury. Here is an extract from the testimony of this witness:
“Q. Mr. Reed asked you that if you saw ore piled up over the mouth of the chute that you would naturally suppose that the chute was congested and that the ore was not running down well. A. Yes, I said so; and I can say so under your question.
“Q. I suppose you mean by that that if you saw the ore piled up over the opening of the chute, you mean by that that you would naturally suppose that the door of the lower mouth of the chute was. closed and that the whole chute was filled up with ore; that is right, isn’t it? A. The door was closed, yes.
“Q. And the supposition would be that the whole chute was packed full of ore? A. Yes.”
In view of the situation of the deceased, of the extent of their knowledge, intelligence, and experience, and of their relation to the Ozark Company portrayed by the evidence, and of the uncertainty in which the testimony of the foreman leaves the nature and extent of the warning he gave them, the fact that they were fairly warned of the risk or danger of being or working over the upper portal of the chute, and of the way to avoid this danger, was not so clearly proved, that there was error in leaving the question of the sufficiency of that warning to the jury, and the judgment below is affirmed.