American Zinc Co. v. Graham

• Decision Date: 02 October 1915
• Parties: AMERICAN ZINC CO. v. GRAHAM.
• Court: Tennessee Supreme Court

179 S.W. 138

132 Tenn. 586

AMERICAN ZINC CO. v. GRAHAM.

Supreme Court of Tennessee.

October 2, 1915

Certiorari to Court of Civil Appeals.

Action by D. F. Graham against the American Zinc Company. From a judgment of the Court of Civil Appeals, affirming a judgment of the circuit court for Knox county for plaintiff, the defendant brings certiorari. Affirmed.

Pickle Turner & Kennerly, of Knoxville, for plaintiff.

Cornick Frantz, McConnell & Seymour, of Knoxville, for defendant.

NEIL C.J.

Graham sued the zinc company to recover damages for an injury received by him while being drawn up a mine shaft belonging to the company. He recovered a judgment in the circuit court of Knox county for $500, and on appeal to the Court of Civil Appeals that judgment was sustained. The case was then brought here by the writ of certiorari.

Plaintiff in error, the zinc company, is the owner of a zinc mine, and also a factory for reducing the ore. At the time the injury occurred the factory had not been built, nor had the mine been put fully in operation. A shaft had been sunk to the depth of more than 250 feet. From the foot of this shaft a drift was run to the location of an old shaft on the property with a view to drilling upwards and reaching the bottom of that shaft, thus connecting the two. This was intended as a means of properly conducting air into the mine. The rock and ore broken down in the course of running the drift were carried up through the new shaft by a metal bucket drawn over a windlass propelled by steam. In the same manner the employés of the company working in the mine were drawn to the surface. When employés were to be drawn up, notice was given by a servant of the company standing at the foot of the shaft by means of a wire connected with a bell at the surface three taps being given to indicate that an employé was entering the bucket. The wall of this shaft was not protected in any manner, but was in the state left by the excavation. The Acts of 1903, c. 237, § 28, requires that certain protections shall be furnished for the security of employés. One of these is that the bucket shall be covered; another is that there shall be certain structures inside the shaft to make safe the ascent and descent of the employés. None of these requirements were complied with. The reason assigned by the company is that they wanted first to make the air connection complete and that they could not do both at once. It is also insisted that the mine was not complete, and that the statute did not apply to an incomplete mine. The plaintiff in error, while being drawn up through this shaft, was considerably injured by striking against the walls caused by the swinging of the bucket.

The first question to be determined is whether this statute applies to a mine incomplete in the respects herein stated. We are clearly of the opinion that it does. There is the same reason for protecting the miners going up and down the shaft in an incomplete mine as in one that is complete. The shaft itself was complete, except the building of the structures therein which the statute requires. This shaft had been put down some weeks, and, as already stated, the miners were then engaged in running a cross entry or drift from the foot of it. Of course, they had to go down this shaft in getting to their place of work on the drift, and at night had to be transported up the shaft to their homes. There was as much need to them of this protection as there ever could be.

The second inquiry is whether the miner assumed the risk of the situation, knowing, as he did, that the plaintiff in error had failed to comply with the statute. To hold that he did assume the risk would be equivalent to a repeal of the statute, since it would be a continuing invitation to the company to forbear compliance with its provisions. The statute was passed under the police power of the state for the purpose of protecting those who are unable to...