Anderson v. Daly Min. Co.

• Decision Date: 18 May 1897
• Docket Number: 770
• Citation: 49 P. 126,15 Utah 22
• Court: Utah Supreme Court
• Parties: ANDREW ANDERSON, RESPONDENT, v. THE DALY MINING CO., APPELLANT

49 P. 126

15 Utah 22

ANDREW ANDERSON, RESPONDENT, v. THE DALY MINING CO., APPELLANT

No. 770

Supreme Court of Utah

May 18, 1897

Appeal from the Third district court, Salt Lake county. Hon. Ogden Hiles, Judge.

Action of tort by Andrew Anderson against the Daly Mining Company for injuries sustained in a mine. From judgment for plaintiff, defendant appeals.

Affirmed.

Bennett Harkness, Howat & Bradley and H. J. Dininny, for appellant.

Cited Consolidated Coal & M. Co. v. Ford, 25 L. Rep. An 848-56, (Ohio); Cullen v. Bull, 45 P. 1017-20; Petaja v. Aurora, 66 N.W. 951-2; Finlaysen 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; Kelly 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.

Moyle, Zane & Costigan, for respondent.

McCARTY, District Judge. BARTCH and MINER, JJ., concur.

OPINION

McCARTY, District Judge:

This action is brought to recover damages for personal injuries alleged to have been received by plaintiff, a miner, while working in defendant's mine. The complaint, in substance, alleges that plaintiff was working in the bottom of a shaft that was being sunk by defendant in its mine; that there were three shifts, and each shift was in charge of a shift boss, and in charge of all the shifts was the foreman of the mine; that said shifts were engaged in blasting in said shaft; that it was the duty of each shift boss, when the shift went off work, to report any blasts in the ground that had not been discharged; that the shift boss on the 24th day of June, 1895, left certain undischarged blasts in the ground which were not set off by reason of the shift boss being ordered by the foreman to quit blasting and do other work in the mine; that no report was made, to the shift on which plaintiff was employed, of the blasts left in the ground; that the blasts were covered up, so that they could not be seen, and because of these acts of negligence of defendant one of the blasts exploded while the plaintiff, in the exercise of due care, was engaged in working in said shaft, and in consequence plaintiff received the injuries complained of. The answer denies negligence on the part of the defendant, and alleges negligence on the part of the plaintiff and his co-employes.

Appellant contends that there is no evidence to support or justify the verdict. The evidence, in substance, is as follows: The defendant, at the time alleged in the complaint, was sinking a shaft in its mine, and power drills were used in drilling holes in the bottom of the shaft. On the 26th day of June, 1895, plaintiff, who was a miner, and in defendant's employ, and who never had any experience in running drilling machines or sinking shafts, which inexperience was known to the defendant, was put to work by defendant on the drilling machines in the shaft. Three eight-hour shifts were employed in sinking the shafts, and each shift consisted of six men, one of whom was known as a "pusher," who worked with the other men, and whose duty it was to oversee, control, and direct the work in the shaft, and to see that the men worked to the best advantage. The work in the shaft was more dangerous than ordinary mining, and the men working therein received 75 cents per day more than the other miners, except the pushers, who received 50 cents per day more than the other men employed in the shaft. The danger consisted in drilling and setting off blasts. It was the custom and rule for the pusher going off, if any blasts were fired, to report all missed shots to the oncoming pusher. If no report was made of missed shots it was assumed by the oncoming pusher and his men that there were none. On June 26, 1895, Michael Wynn, one of the pushers, with his men, went to their work in the shaft, cleaned up and hoisted the loose dirt therein, found two missed holes filled with powder, and several "pot holes,"--holes that had been blasted, but the powder failed to break the ground and rock to the full depth of the holes. Wynn, the pusher, went out of the shaft for powder and fuse with which to blast these holes. When he arrived on top he met James Quinn, the foreman, overseer, and manager of the mine, who directed him to let the holes go and not blast them, and to put his men at other work, which he did. Wynn and his men, and the succeeding shift, the shift with which plaintiff worked, did not resume work in the shaft until the following day, the day on which plaintiff was injured. In the meantime these missed shots and pot holes were not blasted, and no report was made of them, either by Wynn or Quinn, to the shift that first resumed work in the shaft after Quinn's attention had been called to its dangerous condition by Wynn, or to the pusher under whom plaintiff worked. When plaintiff and the men with whom he was working returned to the shaft, they found that the preceding shift had drilled 11 holes, and the drilling machines were in position for drilling, and that there was nothing in the appearance of the bottom of the shaft that indicated to them that there were any missed shots or dangerous holes of any kind concealed and imbedded therein. While the plaintiff was attempting to start a hole with one of the power drills, the drill slipped into one containing powder--a missed or pot hole--that had been left and not reported, and caused an explosion, inflicting on him the injuries complained of.

It is claimed by defendant that Pusher Wynn called Foreman Quinn's attention to pot holes only, and that this class of holes contain no powder, hence are harmless, and therefore it was not notice to the defendant of the dangerous condition of the shaft. We think, however, that the evidence shows that pot holes are dangerous. Foreman Quinn, a witness for the defendant, testified on this point as follows: "Pushers ought to look out for holes when they are starting a hole. When they are drilling, it is the duty of the man in charge of the shift, and all the men for their own safety, to look out always where they are starting a hole because you can't tell what is in the bottom of a shaft. * * * For his own safety a man has to look out for these pot holes,--from an old hole that was blasted before. * * * It is best for him to do that, and not put a drill into it without looking around." James Johnson, another of defendant's witnesses, testified as follows: "We generally try never to start a hole where there has been a prior shot, without picking down and examining it closely to see if...