Anderson v. Daly Min. Co.

• Decision Date: 09 October 1897
• Docket Number: 843
• Court: Utah Supreme Court
• Parties: JACOB ANDERSON, APPELLANT, v. DALY MINING COMPANY, RESPONDENT

50 P. 815

16 Utah 28

JACOB ANDERSON, APPELLANT, v. DALY MINING COMPANY, RESPONDENT

No. 843

Supreme Court of Utah

October 9, 1897

Appeal from the Third district court, Summit county. Ogden Hiles Judge.

Action of tort by Jacob Anderson against the Daly Mining Company for injuries sustained by plaintiff while at work in defendant's mine. From a judgment for defendant plaintiff appeals.

Affirmed.

Moyle Zane & Costigan, for appellant:

The shift bosses on these separate shifts and the men on all the shifts were not fellow workmen as defined by the courts of Utah. The lower court took the extreme definition of common employment, a definition which this court has repeatedly refused to adopt. Pool v. S. P. Co., 7 Utah 303; Webb v. Railway Co., 7 Utah 363; Trihay v. Mining Co., 4 Utah 468.

The court ignored in the charge the well settled rule that the shift boss was performing a duty of the master, for whose non-performance the master was liable. McMahon v. Mining Co., 70 N.W. 478; Bishop Non-Cont. Law, sec. 656, 664; 2 Jaggard Torts, 1043-1045.

Bennett Harkness, Howat & Bradley and H. J. Dinenny, for respondent.

When the place furnished by the master is safe when furnished, but is made unsafe by the work that is being done in it, the master has no duty in regard to it. It is the duty of the men to keep it safe. Swanson v. Ry., N.W. Rep. 978; Consolidated Coal & M. Co. v. Ford (Ohio), 25 L. Rep. Ano. 848-56; Cullin v. Bull, 45 P. 1017-20; Petaja v. Aurora, 66 N.W. 951-2; Finlayson v. Utica, 67 F. 507; Davis v. S. P. R. R., 98 Cal. 19-25; Burns v. Sennett, 99 Cal. 363-8; Lewis Con. Coal Co. v. Scheller, 42 Ill.App. 619; Kelley v. Norcross, 121 Mass. 508; McGinty v. Reservoir, 155 Mass. 183-7; City of Minn. v. Lundin, 58 F. 525-29; Mansco v. Cataract Co., 34 N.Y.S. 507; Gulf C. & S. F. Ry. Co. v. Jackson, 65 F. 48; Con. C. & M. Co. v. Clay (Ohio), 38 N.E. 610; Marsh v. Herman (Minn.), 50 N.W. 611; Corson v. Coal Co. (Iowa), 1 Am. Neg. Rep. 230; Ling v. Ry. (Minn.), 52 N.W. 378; Peschil v. Ry. (Wis.), 21 N.W. 269; Beasley v. Wheeler (Mich.), 61 N.W. 658; Bullen v. Townsend (N.Y.), 26 N.E. 1017; Cullen v. Norten, 26 N.E. 905; Cleveland v. Brown, 73 F. 974.

When men are engaged in doing the master's duty they are fellow servants in doing that duty. Murphy v. Ry., 88 N.Y. 146; Cleveland v. Brown, 73 F. 974; Marsh v. Herman, 50 N.W. 611; Lindell v. Woods, 42 N.W. 1020; Frazer v. Lumber Co., 47 N.W. 785; Skinner v. Ry., 15 S.W. 442.

MINER, J. BARTCH, J., and CHERRY, District Judge, concur.

OPINION

MINER, J.:

This appeal was taken by the plaintiff June 14, 1897, from a judgment entered in the Third district court of Summit county, in favor of the defendant. The verdict of the jury was rendered June 18, 1896. The action was brought to recover damages for injuries alleged to have been received by the plaintiff while working in defendant's mine, through the negligence of the defendant. There is testimony tending to show that defendant was sinking a shaft in its mine by the use of Burleigh drills worked with compressed air. About 27 holes had been drilled in the bottom of the shaft. This work was being done by three shifts of six men each. Each shift was in charge of a pusher, who formed one of the shifts, and worked the same as the other men, but who received 50 cents a day more. James Quinn was foreman of the mine, and had control of the pushers. The pusher had charge of the men on the shift, and instructed them, but had no authority to hire or discharge any man on the shift. A "missed hole" is one where the powder in the hole has not exploded, and is usually dangerous. A "pot hole" is one where there has been an explosion, but one where the rock is not driven out, and the bottom is left like a pot. Winn was pusher in the first shift, which went on at 7 a. m. and off at 3 p. m. Anderson, the plaintiff, was pusher in the second shift, that went on at 3 p. m. and off at 11 p. m. Malia was pusher in the third shift, and went on at 11 p. m. and off at 7 a. m. All did the same kind of work at times in drilling, blasting, and cleaning out the same shaft. The holes being drilled were five or six feet deep, and filled with giant powder, and exploded by caps. When holes were exploded, the pusher and others counted the number of explosions, to see if they corresponded with the number of holes or blasts set off, in order to determine the number of missed holes; but this method was not always accurate, as sometimes several holes would explode at once, and missing reports would not always indicate missing holes. There was an arrangement among the shifts that off going pushers should notify oncoming pushers of any missing reports. The pushers made it a rule to tell each other. If the pusher going off failed to make a report, it was the custom of the oncoming pusher to ask him if there were any missing holes. The oncoming pusher would not be justified in not asking the question as to missing reports. This was a rule among the miners for their own safety, with which defendant had nothing to do, and the foreman of the mine was never notified. The plaintiff had worked in the mine for four years, and in this shaft for a considerable time, and was a pusher working on one of the shifts. On June 25, 1895, Malia, a pusher, went off work with his shift at 7 a. m. Winn, a pusher, with his shift, went on at the same time. Malia reported to Winn that in the center shaft there were five missing holes. Winn cleared the dirt off the end holes, and blasted them, and left nine reports short. At 3 p. m. plaintiff, with his shift, went on. Winn did not notify plaintiff of the missing reports, nor did the plaintiff ask him if there were any. Plaintiff attended to some timbering, but did no blasting and went off at 11 p. m. Malia's shift came on at 11 p. m., cleared off some dirt, but did no blasting, and went off at 7 a. m., June 26th. Winn, who had received a report from Malia of the missing holes, with his shift, came on at 7 a. m., June 26th. Carr--a witness--testified that Winn cleared up, looked for, and found a missed hole in the center of the shaft, two blown-out holes on the side, and two or three in the east end. Winn put a scraper in the hole, and said he would blast the holes, when the foreman came down, and sent him to work on another level, saying that other parties would do the blasting. The testimony of Carr concerning the missed holes, and the placing of a scraper in one of them, and as to what the foreman said, is disputed by other witnesses, who claim there were no holes in the shaft except pot holes, and that the foreman was not present, and did not make the statement attributed to him, but, on the contrary, saw Winn on the top of the shaft, and was there informed there were no missing holes. As to what did transpire before and at the time of the accident is in dispute, and the testimony is conflicting. It sufficiently appears, however, that plaintiff, Anderson, with his shift, commenced drilling in the center of the shaft, and was injured by an explosion from one of the holes previously drilled that had not exploded, and which contained a small amount of powder. Mr. Quinn was called by the defendant, and stated that he heard the testimony of Carr with reference to witness having directed Winn to take his men up to the tenth level at the time of the accident, and was asked, "How is that as to being true or not?" The question was objected to as irrelevant, incompetent, and immaterial, and as calling for a conclusion. The objection was overruled, and witness answered "No, sir," and then stated the facts. Under these circumstances we discover no error in the ruling of the court. The witness stated the facts in detail concerning the matter, and the plaintiff was not in any way prejudiced by the manner in which the facts were obtained. Mr. Carr, a witness for the plaintiff, gave testimony tending to show that Quinn, the superintendent, had directed Winn, just before the accident, while in the bottom of the shaft, to go out on the 1,000-foot level, and do work there, and that the next shift would blast the missed holes in question. It does not appear that plaintiff was present at this conversation. Mr. Quinn had denied this conversation, and stated that he was not at the bottom of the shaft at the time, but on top of the shaft, and there had a conversation with Winn. Mr. Quinn was then asked what was said. The question was objected to. The objection was overruled on the ground that it was proper to show under what circumstances he ordered the men away from the pot holes, to show the facts. Witness replied that he asked Winn where he was going, and was informed that he was going to blast a couple of pot holes in the bottom of the shaft, and that there were no missed holes there, etc. This subject was opened up by the plaintiff. This testimony was proper as tending to show the place of the conversation, and to show what the facts were that caused him to order Winn from going to the bottom of the shaft to take care of water running into the shaft, and as bearing upon Quinn's alleged negligence at the time. Counsel for the defendant asked the same witness the following question: "Whose duty was it, when these shifts went on, to see that the work was properly and carefully done, so as to avoid injury to the men or to the pushers themselves,--who attended to that?" The question was objected to, and the objection overruled. Answer: "The pushers. The pushers ought to look around, and instruct the men." The question was imperfectly framed, but was not clearly improper. The plaintiff claimed that the injury was caused by Winn in not reporting missing reports. The defendant claimed the rule to be that the pusher and the men should examine the bottom of the shaft...