130 P. 441 (Mont. 1913), Melville v. Butte-Balaklava Copper Co.

Citation:130 P. 441, 47 Mont. 1
Opinion Judge:BRANTLY, C.J.
Party Name:MELVILLE ET AL. v. BUTTE-BALAKLAVA COPPER CO.
Attorney:Maury, Templeman & Davies, of Butte, for appellants. Kremer, Sanders & Kremer, of Butte, for respondent.
Judge Panel:HOLLOWAY and SANNER, JJ., concur.
Case Date:February 10, 1913
Court:Supreme Court of Montana
 
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Page 441

130 P. 441 (Mont. 1913)

47 Mont. 1

MELVILLE ET AL.

v.

BUTTE-BALAKLAVA COPPER CO.

Supreme Court of Montana

February 10, 1913

Appeal from District Court, Silver Bow County; Jno. B. McClernan, Judge.

Action by Thomas Melville and others against the Butte-Balaklava Copper Company. Judgment for defendant; plaintiffs appeal. Affirmed.

Page 442

Maury, Templeman & Davies, of Butte, for appellants.

Kremer, Sanders & Kremer, of Butte, for respondent.

BRANTLY, C.J.

The purpose of this action is to recover damages for the death of Michael Melville, which is alleged to have been caused by the wrongful act of the defendant. The plaintiffs are the widow and minor children of the deceased, and sue as his heirs.

The facts showing how the accident occurred may be briefly stated as follows: On the evening of December 6, 1909, the deceased was in the employ of the defendant as shift boss and pumpman. He had gone on shift at about 7 o'clock in the morning, and had worked continuously from that time until he was injured. He and four other men constituted the shift. They were engaged in excavating a third compartment to the defendant's mining shaft. The work had begun at the 500-foot level, and had progressed upward to the 200-foot level. The two compartments already constructed were used, respectively, for pumping and hoisting purposes. During the work the men stood upon a bulkhead, which extended over the three compartments of the shaft. Owing to the presence of the men there, the cage could not be lowered entirely to the level of the bulkhead. Therefore, in order to remove the débris resulting from the excavation, the men shoveled it into buckets, which were raised, one at a time, to the surface by means of a hook attached to the underside of the deck of the cage. When a bucket was ready to be raised, it was hooked to the cage; then, at a signal by the bell to the engineer at the surface, the cage was raised about five feet, or far enough to clear the bucket from the bulkhead. It was then stopped long enough to enable the men to steady the bucket, so that it would not swing back and forth and bump into the timbers on the way up. Upon the giving of a second signal, it was raised to the surface. When the change shift went on at 3 o'clock in the afternoon, it was found that the air hose line had been broken by blasts set off by the morning shift. The air line came down from the surface by way of the pump compartment, and through the other compartment into the excavation. The deceased, having charge of this shift also, undertook to repair the hose. The point at which the break in it had occurred was some 15 feet above the level of the bulkhead. The deceased went up on the cage to this point, and stepped off upon the timbers separating the pump compartment from the hoist compartment. There being ample room for the cage to pass and repass him, he ordered the men below to send the cage up. Upon its return trip another bucket was attached to it, and the signal given to raise it. As usual, it was stopped for a moment to steady the bucket. By that time the deceased had completed the repairs, and, desiring for some reason to go to the surface, without giving notice to any one of his intention to do so, he attempted to step upon the cage as it passed the position where he was standing. He missed his footing, was caught between the cage and the timbers, and so badly injured that he died within a few days thereafter.

The wrongful act for which recovery is sought is alleged in the complaint substantially as follows: That the deceased was working underground in defendant's mine in the capacity of shift boss and pumpman; that on December 6, 1909, the defendant wrongfully and intentionally required him to remain at work continuously for a period of more than eight hours; that after he had been engaged for more than eight hours he was "dealt by and in and from said required employment grievous bodily injuries, from which he died thereafter on the 12th day of December, 1909;" and that there was not, at the time of the injury, any emergency by which life or property was in imminent danger. The answer denies generally the allegations of the complaint. It alleges that the injury of the deceased was due solely to his own negligence in attempting to step upon the cage while it was in motion, and that in so doing he assumed the risk, knowing the danger thereof. The reply joins issue upon these allegations.

It will be observed that the complaint does not allege that the deceased was in such a condition of mental and physical exhaustion, induced by overwork, that he was unable to give proper attention to his surroundings, and that this was the efficient cause of his injury. Though the evidence does not show definitely whether the deceased had continued work after the lapse of eight hours at the instance of defendant's superintendent, or whether he did it voluntarily to accommodate the shift boss who should have relieved him, it is conceded, for the purposes of this case, that he continued at work, with the knowledge of the superintendent, under a standing order made by him that each shift boss should continue at work until he was actually relieved by his

Page 443

successor. At the close of the evidence the court granted a nonsuit and rendered judgment for the defendant. The appeal is from the judgment. Did the court err in granting the nonsuit?

The plaintiffs are entitled to recover, if at all, under section 6486 of the Revised Codes, which declares: "When the death of a person not being a minor is caused by the wrongful act or neglect of another, his heirs or...

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