Bunker Hill & S. Mining & Concentrating Co. v. Schmelling

• Decision Date: 23 February 1897
• Parties: BUNKER HILL & S. MINING & CONCENTRATING CO. v. SCHMELLING.
• Court: U.S. Court of Appeals — Ninth Circuit

79 F. 263

BUNKER HILL & S. MINING & CONCENTRATING CO. v. SCHMELLING.

United States Court of Appeals, Ninth Circuit.

February 23, 1897

W. B Heyburn and John Garber, for plaintiff in error.

Albert Allen, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

ROSS Circuit Judge.

This was an action for damages growing out of personal injuries sustained by the defendant in error, who was plaintiff in the court below, alleged to have been sustained by him by reason of the negligence of the plaintiff in error, who was defendant below. The plaintiff was employed as a laborer in the defendant's Bunker Hill Mine, and at the time of the accident was engaged in shoveling ore in the Williams stope of that mine, alleged in the complaint to consist of a large chamber about 200 feet in length, about 100 feet in width and from a few feet to 30 or 40 feet in height. The complaint alleged that on the 16th day of February, 1894, the defendant had a large number of men, including the plaintiff, employed in extracting ore from the Williams stope, by reason of which it was the duty of the defendant to keep and maintain the stope in good and safe condition; that on and prior to February 16, 1894, the defendant carelessly and negligently mined out the ores and rock from the stope in question carelessly and negligently leaving great masses of overhanging rocks and ore with scarcely any support, and in such condition that they were liable to fall at any moment, and that by reason thereof the stope became and was a dangerous place for persons to work, which fact, by the use of reasonable care and prudence on the part of the defendant, ought to have been known to it, and in fact was so known; that on February 16, 1894, the defendant, through its officers and agents having charge of the works, well knowing that the Williams stope was an unsafe and dangerous place for persons to work, and well knowing that the overhanging rocks and ore were not well supported, and were liable to fall at any moment, carelessly and negligently required and directed the plaintiff to work therein at shoveling rock and ore; and that while so engaged, without any fault or negligence on the part of the plaintiff, and without any knowledge on his part that the place was dangerous, a large quantity of the rock and ore from the roof of the stope fell upon the plaintiff, seriously injuring him.

The answer of the defendant admitted the employment of the plaintiff as alleged by him, denied the extent of the Williams stope as alleged, but admitted that it was about 200 feet in length, about 58 feet in width, and from 7 to 10 feet in height, and had been made by the defendant in extracting ores therefrom. It admitted that on the 16th day of February 1894, it was engaged in mining and extracting ore from the Williams stope, and had engaged and employed therein a large number of men, including the plaintiff; and that by reason thereof it became and was the duty of the defendant to keep and maintain that stope in as good and safe a condition as it was possible to keep and maintain the same, so that such persons so employed would not be subject to danger. And the defendant alleged that on the said 16th day of February, 1894, and at all the times mentioned in the complaint, the defendant exercised great care in examining and in inspecting the mine for the purpose of keeping and maintaining the same, and every part thereof, including the Williams stope, in safe condition, in order to avoid all possible danger to its employes' that such examination and inspection was made by competent and skillful miners employed by the defendant for the purpose, and that the miners so employed determined that the stope in question was safe, and free from danger, and that there was nothing in or about it from which the most skillful and careful miner or workman, including the plaintiff, could reasonably expect or anticipate any danger. The answer denied all the allegations of negligence charged in the complaint, and alleged that the ore in the Bunker Hill Mine is in the ledge in large masses or ore bodies, in extracting which it is necessary to excavate large chambers; that, after blasting for the purpose of breaking down the ore in the chambers, the defendant at all times, acting through skillful and competent men, made careful and thorough examinations and inspections of the rock and ore surrounding the excavations, and at all times, including the 16th day of February, 1894, took every care and precaution to protect its employes, and to prevent injury to them, and that the fall of the rock which caused the accident to the plaintiff could not be foreseen or provided against by the most skillful and careful inspection, and was not the result of any fault or negligence on the part of the defendant. The answer further alleged that at the time of the accident to the plaintiff the stope in question was in as safe a condition as it was possible under the most skillful supervision of competent miners to keep it; that the plaintiff was accustomed to working in mines of a similar character to that of the defendant, and was competent to judge of the safety of the stope where he was working; that the risk of working therein was assumed by him as a part of his employment, with the full knowledge of the condition thereof; that the walls of the stope in question were sound, solid, and well supported at all times, and that no rock or other substance at any time fell from either the roof or walls of the stope; that whatever rock did fall in the mine consisted of ore, and fell from the breast of the stope, and not elsewhere, and did not amount altogether to over 10...