Barry v. Badger, 3817.

• Docket Nº: No. 3817.
• Citation: 54 Mont. 224
• Case Date: November 21, 1917
• Court: United States State Supreme Court of Montana

54 Mont. 224

BARRY
v.
BADGER et al.

No. 3817.

Supreme Court of Montana.

Nov. 21, 1917.

Appeal from District Court, Fergus County; Roy E. Ayers, Judge.

Action by E. J. Barry against W. W. Badger, Robert F. Turnbull, Thomas O. Caldwell, James H. McCormick, and William Young, copartners doing business under the firm name of Gold Reef Lease. From an order of nonsuit and denial of a new trial, plaintiff appeals. Affirmed.

John A. Coleman and M. M. Holzman, both of Lewistown, for appellant.

Jesse B. Roote and H. C. Hopkins, both of Butte, for respondents.

BRANTLY, C. J.

In this action plaintiff seeks to recover damages for a personal injury, alleged to have been caused by the negligence of the defendants during the course of his employment by them as a miner. The defendants were copartners, under the firm name of the “Gold Reef Lease.” They were engaged in the business of leasing and operating quartz mines in Fergus county, their principal place of business being at Lewistown. In the year 1913 they held under lease and were operating the MacGinniss mine at Maiden. The plaintiff was employed by them as a miner. It is alleged in the complaint that the defendants failed and neglected to exercise ordinary care and diligence to provide the plaintiff with a reasonably safe place in which to work, whereby he sustained the injury complained of. The answer of the defendants consists of a general denial of the negligence alleged, and allegationsof the defenses of assumption of risk and contributory negligence on the part of the plaintiff. The cause was tried in November, 1914. At the close of the evidence, the court granted defendants' motion for nonsuit, the grounds thereof being: (1) That the evidence failed to show that the defendants did not use ordinary care to provide the plaintiff with a reasonably safe place in which to work; (2) that the injury was due to one of the ordinary hazards of the employment assumed by the plaintiff when he entered the employ of defendants; and (3) that it appeared that the plaintiff was guilty of contributory negligence. The plaintiff has appealed from an order denying his motion for a new trial.

About 30 days prior to January 23, 1913, the plaintiff, in company with W. G. Allen, also employed by defendants as a miner, was assigned work in a stope in defendants' mine from which most of the ore had theretofore been removed. It was a large excavation, extending along the vein from west to east about 28 feet. It was 40 or 50 feet in height and about 20 feet in width from north to south at the widest portion of it. The north wall was in a porphyry formation. The south wall was in hard limestone. Ore was exposed in a vein in the north wall, down near the floor. In order to reach the ore in this vein it was necessary to clean up and remove from the floor a large amount of débris. The evidence does not disclose whether this débris consisted of ore or was merely waste which had been left there during the previous mining operations. Nor does it show whether it had resulted from blasting, or had fallen from above because of a process of slacking in the roof or walls. A raise had been constructed from a tunnel in the lower workings up into this stope, coming through the floor near the foot of the wall on the south. This had been made use of as a chute in order to remove the ore and waste during mining operations in the stope. The floor sloped upward from the west toward the east. The face of the north wall was substantially perpendicular and comparatively smooth; the south wall was rough and uneven, and inclined from a perpendicular to the south. About 20 feet from the floor was an “overhang” extending horizontally along the face of this wall, which was referred to by the witnesses as a “bench.” At a point several feet east of the mouth of the chute it projected out from the general surface of the wall to a distance of 3 or 4 feet. At this point it was supported by stulls. So far as the evidence discloses,...