Arrascada v. Silver King Coalition Mines Co.
| Decision Date | 21 April 1919 |
| Docket Number | 3300 |
| Citation | 54 Utah 386,181 P. 159 |
| Court | Utah Supreme Court |
| Parties | ARRASCADA et al. v. SILVER KING COALITION MINES CO. et al |
Appeal from District Court, Third District, Salt Lake County; P. C Evans, Judge.
Action by Vicenti Arrascada and others, by Joel Nibley, their guardian ad litem, and Carmen Arrascada, against the Silver King Coalition Mines Company, and others. From judgment against the named defendant, it appeals.
AFFIRMED.
Dickson Ellis & Lucas and Marioneaux & Beck, all of Salt Lake City for appellant.
APPELLANT'S POINTS.
The law recognizes absolute safety is unattainable, and that employers are not insurers of the safety of their employes, and that employers are liable for the consequences, not of danger, but only of their negligence. Fritz v. Electric Co., 18 Utah 493; Roth v. Eccles, 28 Utah 456.
The burden did not rest upon defendant to show that Breen and Allen were fellow servants of deceased. On the contrary the burden rested upon plaintiff to show that they were not such fellow servants. Braegger v. Ry. Co., 24 Utah 391.
Van Cott, Riter & Farnsworth and E. O. Leatherwood, all of Salt Lake City, and W. A. Stone of Caldwell, Idaho, for respondents.
RESPONDENT'S POINTS.
The proposition that a servant to whom is delegated the duty of making a place safe, warning a servant of transitory dangers, etc., is a vice-principal, is discussed by Labatt in section 1471 of volume 4 of his treatise.
This doctrine is announced by the Utah Supreme Court in the following cases: Downey v. Gemini Mining Co., 24 Utah, at 442-3; Trihay v. Mining Co., 4 Utah 468.
Deceased and the miners were not in the same grade of service. Even at common law, as construed by the Supreme Court of Utah before the enactment of our fellow service statute, these men would not have been held to be fellow servants. Vota v. Ohio Copper Co., 42 Utah 129.
The minor children of Vicenti Arrascada, by their guardian ad litem, and Carmen Arrascada, his widow, commenced this action against the Silver King Coalition Mines Company and Evelyn Allen and Howard Breen employes of the mining company for damages sustained through the death of the husband and father as a result of the defendants' alleged negligence. Judgment was obtained in the district court of Salt Lake county against the defendant Silver King Coalition Mines Company. The cause of action against Allen and Breen was dismissed during the progress of the trial. The defendant corporation appeals.
The following is a brief recital of the material facts which the testimony introduced by plaintiffs tended to prove. The defendant owned and operated the Alliance mine at Park City, Utah. On July 14 and 15, 1916, it was engaged in the construction of a three-compartment chute extending from the 900-foot level of the mine upwards to the 700-foot level. The chute was constructed of lumber and timber. The middle compartment was a manway, and the others were for the purpose of carrying ore. On July 14th the chute had been constructed to the height of about 100 feet above the 900-foot level. The top of the chute was about eight feet below the top of the raise in which the chute was being constructed. The deceased was employed by the defendant on July 14, 1916. Until he was injured the next day he assisted in the construction of the chute. As the result of an accident occurring July 15, 1916, caused by the alleged negligence of the defendant, Arrascada died on May 17, 1917. In a deposition taken before his death, and read in evidence at the trial, Arrascada testified to the effect that the miners or machine men were drilling in the ground above him and above the three compartment chute on July 15, 1916, the day of the accident; that he had nothing whatever to do with their work; that he never was present when they did their work; that he did not see them drilling, but heard them working; that he never drilled into nor examined in any way the ground at or around the raise; that just before the accident he was in the top set of the chute, which was lagged over, and went to get on top of the lagging; that he had that day been ordered by the shift boss to get on top of this lagging and nail it down before the machine men blasted their holes; that the machine men told him they were going to blast and to come up; that he called up to them and asked if everything was all right, and was told by one of them that it was; that there was a space of some sixteen inches between the foot wall and the chute through which he started to climb, and thus get on top of the lagging and comply with the orders received by him; that, as he was trying to go up so as to get on top of the three-compartment chute, he was hit on the head by a rock; that he knew it was a rock because there was nothing above him but rocks; that there was no timbering in the raise above the chute; that when he was hit by the rock he fell backwards into the chute; that he did not know what happened to him after the rock hit him; that when he regained consciousness he was inside the chute, at the bottom of it. The distance between the lagging or the covering over the three-compartment chute and the top of the raise was about eight feet, and it was in the same position with respect to the top of the raise on July 15th, a short time after the accident. There were three ways to get on top of the bulkhead, but it was safest to go up on the foot wall side. Day and night shifts were working in the raise. Dalmer Wiley and Elmer Wood were working on the night shift as miners and machine men, their shift beginning at about 7:30 p. m., and ending at 4 a. m. On the shift next preceding that during which the accident occurred Wiley and Wood drilled six or eight holes in the top of the raise, some of which had been completely finished on that shift. These holes were at the top and on each side of the raise. Returning to work on the evening of the day during which the accident occurred Wiley found eighteen holes, ten of which had been drilled by the day shift. Wiley found loose rock near the holes which had been drilled by the day shift, and he picked down some large and some small pieces of rock in the vicinity of the holes on and toward the foot wall side. The ground through which the raise was then being driven was limestone that did not slack or swell. If properly sounded and picked down, it was not dangerous ground. The work of drilling in the top of the raise had the effect of jarring and loosening the ground at and in the vicinity of the holes drilled. Wiley said it was his practice to make frequent soundings and to make examinations of the holes and at points distant from the holes, covering all grounds from which rock might fall; that the drilling into the ground through which the raise extended, and particularly the work of drilling near the vicinity of the top of the raise as the same was extended on July 15, 1916, had the effect of jarring the rock loose; that, if a raise is being put up in limestone, it will always be safe from falling rock if it has been picked down in the usual way and with the usual care after blasting; that there is always more or less danger when drilling; that the danger is less if precaution is taken; that soundings must be taken from time to time as conditions require; that in this case the usual practice was to make frequent soundings, and if the ground had been sounded and picked down, it would not have caved from the top or side of the raise.
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