128 P. 606 | Mont. | 1912
delivered the opinion of the court.
This is an action brought to recover damages for personal injuries alleged to have been received by the plaintiff while working as a miner in a gypsum or stucco mine of the defendant company near Riceville, in Cascade county. It is alleged in the complaint that the defendant Okerman was mine foreman for the defendant company and was not a fellow-servant of plaintiff. It is also alleged that the roof of the mine, at a place known as the ‘ ‘ old tunnel, ’ ’ was insufficiently timbered and was unsafe and dangerous; that plaintiff was ordered by Okerman to work in said old tunnel after the latter had negligently assured him that the place was safe; that plaintiff, who was inexperienced and unacquainted with the dangerous character of the tunnel, relied upon the assurances of the foreman and proceeded to work; that “while he was in every way complying with such orders and entirely without fault or negligence on his part, ’ ’ a large portion of the roof gave way, fell upon and injured him. The trial resulted in a verdict and judgment in favor of the plaintiff for $10,500. Appeals have been perfected from the judgment and also from an order denying a new trial.
There is not any allegation in the complaint that the company was negligent in constructing the tunnel or in allowing it to remain in an unsafe condition. The charge is, in effect, that the defendant foreman, Okerman, acting for the company in the discharge of its primary duty, negligently directed the plaintiff to work in a dangerous and unsafe place with the assurance that
1. It is claimed by the respondents, in their brief, that
Plaintiff testified: “Okerman was foreman; had charge of the work; hired men and told the miners where to work; I was given my orders about work by Okerman, the foreman. ’ ’
The witness Hyland testified: “During the time I was working there Okerman was foreman of the mine, had charge of it, telling them what to do and so on. Sometimes Mr. Miller, the superintendent, would come up there once a week; others there would be three or four weeks before he would come. No other person had anything to do with the running of the mine and the work on the inside except Mr. Okerman as I ever heard of.”
Thomas Johnson, a miner, testified: “Chas. Okerman was foreman after Lindsey and he was foreman when I quit there. He was looking out for the work, keeping time, and giving orders in and around the mine. I don’t know whether he hired and discharged men, but I guess he did. If he needed men he hired them, I think; Okerman gave me orders where to work in the mine.”
Albert Anderson, another miner, testified: “Chas. Okerman was foreman when I went to work there'and he hired me.” James Linderman, a mine blacksmith, testified: “Chas. Okerman was foreman of the mine up there. He gave directions to the men what to do on such and such a shift, changed them from mine to mine, and sometimes when I needed help he would get one of the miners to help me. He did the hiring of the men there. I don’t remember seeing him discharge anybody but I know when they called for their time they went to Okerman. If I wanted any orders or directions I went to Okerman.”
Okerman himself testified: “I was acting as foreman. I generally go in myself and sound the roof before the men go in there and if I didn’t I had somebody else do it. It was my duty to look after things; see that things worked all right. I had full charge of the underground workings there. I had charge on
Chas. Miller, the superintendent, testified: “In the year 1909 Chas. Okerman was foreman of the Gypsum Company. I believe I employed him either the last part of August or the first part of September.”
We think this testimony justified a conclusion that Okerman was a vice-principal, under the rule laid down in Kelley v. Fourth of July Min. Co., 16 Mont. 484, 41 Pac. 273, Allen v. Bell, 32 Mont. 69, 79 Pac. 582, Hill v. Nelson Coal Co., 40 Mont. 1, 104 Pac. 876, Gregory v. Chicago, M. & St. P. Ry. Co., 42 Mont. 551; 113 Pac. 1123, and Kinsel v. North Butte Min. Co., 44 Mont. 445, 120 Pac. 797. As was said in the case last cited: “His negligent act was that of the master itself.”
2. The foregoing conclusion disposes of the contention that plaintiff should have alleged and proved, affirmatively, that his
3. It is contended that there was not any proof of actionable negligence on the part of the defendants, but the point is not argued in the brief of appellants. However, we are of opinion that if the jury believed the testimony of the plaintiff and his witnesses, they were justified in concluding that both defendants were negligent.
4. Again, it is contended, the evidence showed that the place
“12. The court instructs the jury that a master is not required to furnish a safe place in which to work where the danger is temporary and when it arises from the hazards and progress of the work itself, and it is known, or with ordinary prudence ought to be known, to the servant. The master is not required to be present at the working place at all times in person, or by*420 representative, to protect the laborer from the negligence of his fellow-workmen or from his own negligence in the constantly changing conditions of the work.
‘ ‘ 13. While it is a general rule that a master is bound to use reasonable diligence to provide a servant with a safe place in which to work, and to maintain such condition, during the term of his employment, such rule has no application to a case where the plaintiff and his fellow-servants are creating the place of work; when it is constantly being changed in character by the labor of the men working upon it.”
Plaintiff testified: “I was hired as a mucker, shoveling into a car. In the morning of December 27 I was drilling in the new tunnel. Okerman says, ‘We are short of gypsum. You had better go in the other mine and help there to get out some gyp.’ I asked him what it looked like in there. I hadn’t been working there for several days; asked him whether that mine is safe or not. He says: ‘All right; no danger; the boys is working in there now. ’ Then I took him at his word and went in there. I then went to work in the old tunnel at a place, I should judge, to be 200 or 250 feet from the face. By the face, I mean the place where they were working the gyp back from. There were four men in there before me, two on each side loading and two were further in throwing forth gyp to load on the car. I guess it was about thirty feet from the car that we were taking out the gyp, or thirty-five feet from the track. We were throwing it closer to the car, the small chunks and the big chunks we were rolling over. We four had been working there throwing gyp down to the car for about half an hour when the accident happened. I was knocked senseless by a rock which fell from the roof. When I went in the old tunnel that day I did not sound the sides and roof to see if they were safe. At the time of the injury the men were shooting down the roof and we had to go ahead to get the gyp down. I don’t know when they shot down that gypsum we picked up the day of the accident. I don’t know whether they shoot the gyp at night; I didn’t see them doing that. I am sure they didn’t shoot while I was in there. I don’t know when they did shoot. There wasn’t anybody else
Hyland testified: “There were no timbers in this old tunnel where we were working. There were some further out in the tunnel. As to whether it was timbered in a proper and safe way, I was awfully afraid of it. The way it looked to me it wasn’t fit for anybody to work in. There was nothing. It was all right until you got out where the gyp was shot down and then you couldn’t examine it at all because the top was so high. You couldn’t get to the roof to sound it.”
Assuming this testimony to be true, and in so far as it relates to the position occupied by the plaintiff, and the method employed of “shooting” gypsum from the roof, it is uncontroverted, the roof was a completed place within the meaning of the rule laid down by this court in Allen v. Bear Creek Coal Co., 43 Mont. 269, 115 Pac. 673. Let it be noted that Vasby was no*t engaged in breaking down gypsum but was shoveling out what had been knocked down the evening before. As was held in the Allen Case, supra, he had a right to assume that the defendants, after the gypsum was knocked down, had been reasonably diligent in inspecting the place and taking such precautions as were necessary to guard his safety.
We hold, therefore, that the court did not err in refusing to give the instructions just quoted.
5. The court refused defendants’ requested instruction No. 4, which reads as follows: “Negligent ignorance is equivalent to knowledge. (1 Larson R. R. & P., p. 541; 4 Thompson on Negligence, see. 4647.) So a servant is sufficiently charged with knowledge of the conditions surrounding his place of work if he might have known of them by the exercise of that measure of
“9. All persons of mature years and ordinary experience and endowed with the natural faculties must be held to understand the ordinary laws of nature, such, for instance, as that unsecured roofs or walls of a mine will fall or cave in if not prevented, and*422 it must be presumed when such persons have knowledge of obvious defects in places in which they are engaged in performing ordinary labor, they will also comprehend the natural and probable results which will follow from working in such a place.
“10. If a servant, before he enters the service, knows, or if he afterward discovers, or if, by the exercise of ordinary observation in his department of service, having regard to his age and experience, he can discover that the place where he is at work is unsafe or unfit in any particular, and if, notwithstanding such knowledge or means of knowledge, he voluntarily enters into or continues in the employment without objection or complaint, he is deemed to assume the risk of the danger thus known or discoverable, and to waive any claim for damages against the master in case it shall result in injury to him.
“11. To warrant a finding that a servant assumed the risks of[5] his employment, he need not have had absolute knowledge of the risks, if they are such that an ordinarily prudent man of plaintiff’s knowledge and experience under like circumstances could by reasonable diligence have discovered them.”
We think these instructions sufficiently covered the point sought to be brought to the attention of the jury by the instruction which was refused. We find no infirmity in the court’s instruction No. 11 and think it was justified by the evidence.
6. It is contended that the verdict is contrary to law, for the reason that the jury disregarded the court’s instruction No. 18,
7. Finally, it is urged that the verdict is excessive. Plaintiff testified concerning his injuries: “My leg was awful bad smashed
Dr. Patterson testified: “I found Yasby suffering from a fracture of the left thigh bone. He was in bed for about three
While the verdict is large we are unable to say, as a matter of law, that it is excessive.
The judgment and order are affirmed.
Affirmed.