Browne v. King

• Decision Date: 05 March 1900
• Docket Number: 1,300.
• Citation: 100 F. 561
• Parties: BROWNE v. KING et al.
• Court: U.S. Court of Appeals — Eighth Circuit

100 F. 561

BROWNE v. KING et al.

No. 1,300.

United States Court of Appeals, Eighth Circuit.

March 5, 1900

Conceding that defendant had made it the "particular duty" of the drill runners to look out for and guard against "missed shots," and, after the explosion of any drill holes, to examine them, and, in the event that "missed shots" were found, to remove the powder, or notify the employees in the vicinity, and that the operator to whom plaintiff was helper neglected these duties, yet, it appearing that plaintiff knew that there was no absolute certainty that every shot they attempted to explode would do so, and that the operator neglected to search for "missed shots," the complaint fails to state a cause of action, since it is not alleged that defendant had not exercised reasonable care in the selection of the drill operator, nor that he was incompetent or unfit for any reason, nor that the place in the mine where plaintiff was set to work was unsafe when he entered defendant's employment.

A demurrer was sustained to the complaint in the court below and the only question presented by the writ of error is whether or not the action of the court in sustaining that demurrer was correct. The complaint is as follows:

'The plaintiff complains of the defendants, and alleges: That at the dates hereinbefore mentioned, as plaintiff is informed and believes, the defendants were, and still are, a partnership, doing business in Gilpin county and Arapahoe county, Colorado, under the name and style of the Cook Mining Company. That on or about the 7th day of July, 1898 the plaintiff was employed by the defendant company in the capacity of a helper on one of the air drilling machines used in and about the mine owned and operated by the defendant company; and on said 7th day of July he was set to work by the defendant company in assisting as a helper one Daniel Hanefin, who was operating an air drill in connection with the sinking of a certain shaft upon said mine of defendant company near Central City, in the state of Colorado. That while the said plaintiff and the said defendant Daniel Hanefin were so engaged at work and at a point in said shaft about 275 feet from the surface, the said air drill struck what is known as a 'missed shot,' or 'missed hole' (being more particularly described as a drill hole, or partly filled with unexploded powder), the existence of which missed shot so struck by said drill was wholly unknown to this plaintiff, and, as this plaintiff is informed and believes, and on such information and belief alleges the fact to be, was also unknown to the said Daniel Hanefin. That the striking of said missed shot caused the shot to explode, and such explosion caused a lot of dirt and rock to be hurled and thrown violently against this plaintiff, and portions of said rock penetrated and embedded themselves in both eyes of this plaintiff, knocked off part of his left ear, badly cut and bruised his left check, and cut and bruised his face and chest, whereby the plaintiff has completely lost his left eye, and has been obliged to have it removed, and has almost lost the vision of his right eye, the plaintiff being now able with said right eye only to see large objects, and not being able to read ordinary print, or to see objects the size of ordinary print, as he was well able to do prior to the time of his accident. That before the time of the said accident occurred both eyes of the plaintiff were strong and healthy, and his vision was clear and distinct, and he was able to see perfectly, and to read. That his left ear was so badly cut and damaged, and the bones thereof so greatly injured, that the plaintiff has been obliged to have part of the bones removed, and a rubber tube inserted in his ear to keep it from closing up; and that his hearing in said left ear has been greatly weakened and damaged. That at the time the said accident occurred the said Daniel Hanefin was vested with full power to direct and control the action of this plaintiff in and about his said work as helper, and that, among other things, it was the duty of said Hanefin and other machine or drill runners who worked in and about said mine to look out for and guard against missed shots, and, after the explosion of any drill holes, to examine or cause to be examined the said drill holes, to ascertain whether any shots had missed or failed to explode, and, in case any such shots had missed or failed to explode, to remove or cause to be removed the powder therein, or at least to notify the men working in the vicinity of same of the existence thereof, so that the danger of striking same might be avoided. That it was never at any time the duty of this plaintiff to examine as to said missed holes or missed shots, except when so ordered to do by the machine runners notifying him that a shot occurred which injured the plaintiff in this case he had had no notice that any missed shot had occurred. That this missed shot struck as aforesaid should have been and would have been discovered by the said Hanefin, or the other machine runners, had he or they exercised proper care in the performance of their duty, and that either the said Daniel Hanefin or the other machine runners did not discover the said missed shot, or else, if knowing of the existence thereof, utterly failed to notify this plaintiff of same. That at the time this plaintiff was set to work on said July 8, 1898, at a point in said shaft where said explosion occurred, this plaintiff did not have any notice, knowledge, or reason to believe that the said missed shot existed at the place where he was so directed to work as aforesaid. Nor would the said plaintiff (as the defendant company well knew), in doing the work he was so ordered to do, be at all likely to discover the said missed shot or missed hole; and the defendant company, in so directing this plaintiff to work at the point named, exposed him to very great danger, such as was not incident to his employment, and which this plaintiff did not and had not the means of knowing. That the said missed shot or missed hole was covered up by a lot of fine dirt and dust, so that it could not be seen by this plaintiff. That the plaintiff is of the age of 31 years, and prior to the said accident was in good health, and had a sound body; and at the time the accident occurred he was receiving as wages $3 per day of eight hours. That for four years prior to the said accident he had worked as a miner in and around Central City, and had been able to earn wages from $2.75 to $3.75 per day, and during said time he worked almost continuously, making on an average about $3 per day. That at the time said accident occurred the defendant company was sinking a very large shaft in said mine, being about 8 feet wide and 25 feet long, and in prosecuting their said work used air drills. That this plaintiff, prior to working in the said mine of defendant company, had never worked in any way or in connection with air or machine drills. That there is a very essential difference between mining with air or machine drills and mining with hand drills. That with hand drills the holes are usually sunk between 18 inches and 4 feet, and only on extraordinary occasions more than that; that in the mine of defendant company it was the custom to sink the holes 6 feet. Also in machine drilling it is customary to sink more holes than in hand drilling, and this was the practice of the defendant company, the number of holes drilled for each explosion in the shaft being more than would have been sunk had the drilling been done by hand. That these differences between machine and hand drilling, as this plaintiff is now informed and believes, and on such information and belief charges the fact to be, also exposed this plaintiff to risks and danger to which he would not have been exposed had ordinary hand drilling been used, and with less holes. That the increased danger to which plaintiff was thus exposed was unknown to this plaintiff at the time said accident to him alleged herein occurred; and, as plaintiff was advised, it was the duty of the drill runners to look out for missed shots, and, as such drill runners were intrusted with that particular duty by the defendant company, this plaintiff had good reason to believe, and did believe, that they were experienced, and fully competent to look out for and discover missed shots, and were exercising the proper care in that regard. And when he was set to work by said Daniel Hanefin on said July 7, 1898, in the said shaft, without the said Hanefin or any one else having given him warning that a missed shot had occurred, he had good reason to believe, and did believe, that he was perfectly safe in assuming that proper precaution against missed shots had been used, and that no danger therefrom existed. That the plaintiff since his said accident, has been informed and believes, and on such information and belief charges the fact to be, that the only proper method to discover missed shots in a shaft like the one of the defendant company where work was being prosecuted with air drills as was done by defendant company on said July 7, 1898, is to clean away the rock and dirt caused by each explosion and search for each hole or scraper to ascertain whether or not it had been entirely discharged of the powder placed therein, and, upon finding any powder therein, to remove the same. That, as plaintiff is now informed and believes, and on such information and belief charges the fact to be, neither the defendant company nor any of its officers, nor the said Daniel Hanefin, nor any other drill runners in and about the said mine, cleared away the rock and dirt after the explosion of the drill holes which preceded the accident herein referred to, or searched for said

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