Allen v. Bell

• Decision Date: 17 February 1905
• Citation: 79 P. 582,32 Mont. 69
• Parties: ALLEN v. BELL
• Court: Montana Supreme Court

79 P. 582

32 Mont. 69

ALLEN v. BELL

Supreme Court of Montana

February 17, 1905

Commissioners' Opinion. Appeal from District Court, Broadwater County; W. R C. Stewart, Judge.

Action by E. C. Allen against R. A. Bell. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Toole & Bach, Nolan & Loeb, and R. R. Purcell, for appellant.

T. J Walsh, for respondent.

POORMAN C.

During the spring and summer of 1901 the defendant was the owner of and was operating the East Pacific mine. One D. E. Blair was in the immediate charge of the mine, and plaintiff was a miner working at the bottom of the shaft when a blast was exploded, causing the injury complained of. At the close of plaintiff's evidence on the trial of the case, the defendant moved for a nonsuit, which mo tion was sustained. Judgment was entered for defendant, and plaintiff appeals.

In considering the case, every fact which the evidence tends to prove must be admitted proved. McCabe v. M. C. Ry. Co. (Mont.) 76 P. 701; Nord v. Ry. Co., 30 Mont 48, 75 P. 681. The evidence tends to prove that this mine was operated by means of numerous tunnels, drifts, crosscuts, stopes, and shafts. About 40 men were employed in different parts of the mine. Blair had charge of the operating department of the entire mine; was authorized to hire and discharge men; directed them where, when, and how to work. They consulted him or the shift boss about material required. Blair's authority was superior to the shift bosses'. No one was over him except the owner, Bell was at the mine a part of the time, but Blair's authority remained the same during Bell's presence. Bell directed when new work was to be commenced, but Blair had charge of the work when commenced. Aside from this direction by Bell, Blair's authority was supreme. His duty was solely that of direction and supervision as to the working of the entire mine. He gave the men their time, but did not pay them, as that was done by the financial department. He had charge of the teamsters, and told them what ore to ship, but had nothing to do with handling the returns. That was also done by the financial department. The shaft in which the accident occurred was in tunnel No. 4, about 2,000 feet from the mouth of the tunnel. The owner of the mine was anxious to have the sinking of this shaft expedited, and for that reason Blair spent more time at the shaft than he did at other places about the mine. This was a double compartment shaft, 4 1/2 by 8 feet in the clear, and at the time of the accident had attained a depth of about 130 feet. A machine drill was used in making the holes, and the rock was blasted by the use of dynamite. Three shifts, of two men each, were employed, each shift working eight hours. On June 30, 1901, the Johnson shift commenced at 7 o'clock in the morning, continued until 3 in the afternoon, and was succeeded by the Allen (plaintiff) shift, which commenced work at 3 o'clock, p. m., and continued until 11 o'clock p. m. At the time this Allen shift commenced work, they were informed by the preceding shift and also by Blair that there was a missed hole, when Allen said, "I will go down, clean out, and blast it." Blair then remarked: "It is in the west end of the shaft, and you will be drilling in the east, end, and it will not be in your way. Let it go, and I will see that it is blasted when the next round is blasted." The custom prevailing at the mine in case of a missed hole was that the same should be discovered and blasted by the succeeding shift. The Allen shift did not search for the missed hole, and did not blast it, but, in obedience to the orders of Blair, continued their work in the east end of the shaft. At 11 o'clock p. m., when this shift went off duty, it was succeeded by the unknown shift, which was informed of the existence of this missed hole. This unknown shift continued work from 11 o'clock p. m. June 30th until 7 o'clock a. m. on July 1st, and was again followed by the Johnson shift at that hour. The Johnson shift was not notified of the fact that this missed hole had not been discovered and blasted. This shift was again succeeded by the Allen shift at 3 o'clock in the afternoon of July 1st. The Allen shift at this time received no notice from Johnson that the missed hole had not been blasted, but prior to the time when Allen went down into the shaft, he inquired of Blair how everything was below, and was informed that it was all right, and that all the holes had been blasted, and was also instructed by Blair to muck out what dirt and debris remained in the bottom of the shaft. In cleaning out this dirt and debris, the blast was discharged by a blow from a pick in the hands of Allen, resulting in the injury complained of. There had been blasting done in the mine between the time that Allen went off duty at 11 o'clock on the 30th of June and the time when he came on duty on the 1st of July.

But two questions are presented: (1) Was Blair a vice principal of defendant, or was he, with reference to the matters concerning which it is claimed he was negligent, a fellow servant of the appellant? (2) Was the appellant himself negligent?

It is familiar law that a servant, in the absence of statute assumes as one of the incidents of his employment the risks of injury from the negligence of a fellow servant, because the master cannot by the exercise of the greatest care and caution guard against such negligence. Goodwell v. M. C. Ry. Co., 18 Mont. 293, 45 P. 210; Mast v. Kern (Or.) 54 P. 950, 75 Am. St. Rep. 580, and cases cited. Decisions of courts differ as to the method of determining when one employé is the fellow servant of another employéd. These conflicting decisions have given rise to two distinct rules: (1) The superior servant criterion, based upon the rank or grade of the employé. Under this rule, when the master has given to an employé...