Bunker Hill & Sullivan Min. & Concentrating Co. v. Jones

• Decision Date: 02 May 1904
• Docket Number: 987.
• Citation: 130 F. 813
• Parties: BUNKER HILL & SULLIVAN MINING & CONCENTRATING CO. v. JONES.
• Court: U.S. Court of Appeals — Ninth Circuit

130 F. 813

BUNKER HILL & SULLIVAN MINING & CONCENTRATING CO. v. JONES.

No. 987.

United States Court of Appeals, Ninth Circuit.

May 2, 1904

It is not the duty of a miner employed to operate a drill in a mine to inspect the timbering or the condition of the rock above him, but he has the right to assume that the master has performed his duty in making the place where he is directed to work reasonably safe, and to proceed with his work in reliance on such assumption, unless a reasonably prudent and intelligent man, in the performance of his work, would have learned facts from which he would have apprehended danger to himself.

This is an action for damages for personal injuries sustained by the defendant in error while working in one of the mines of the plaintiff in error. It is alleged in the complaint that the plaintiff (defendant in error) was at the time of his injury on February 13, 1902, and for some time prior thereto had been, in the employ of the defendant company in the capacity of miner and machineman; that at the time of the injury he was working as machineman in the west end of the Bodero stope of the defendant's mine, and on the floor thereof next to the top floor; that the ore and rock in the mine are loose and liable to cave, and more particularly in the roof of the stopes; that it was therefore necessary for the defendant, in working the mine, to cause timbers and lagging to be placed therein, and in the roof of the stopes, from time to time, as the work progressed, to make the same safe, and to inspect or cause to be inspected the roof of the stopes and places in and about the mine, and that it was the duty of the said defendant mining company to cause the said place where this plaintiff was engaged, ordered, and directed to be and work to be safe, and to have the roof of said stope timbered so as to make the same safe; that, at the point where this plaintiff was engaged as aforesaid, the said defendant had theretofore excavated a large chamber, more than 40 feet in length by 10 feet in width, the roof thereof being then and there 10 feet and more from the floor of said stope, which said roof, owing to the character and condition of the rock therein, became dangerous and unsafe, and it became and was the duty of the said defendant to cause the same to be timbered and braced so that the said roof could not fall, and to inspect said roof in order to ascertain and prevent rocks and ore from falling from the roof thereof. ' It is further alleged that the defendant company put the plaintiff to work at the place indicated without adequately securing the roof of the stope, and without providing any protection for the plaintiff, when, without any fault or negligence on his part, and solely on account of the negligence and carelessness of the defendant, a large mass of earth, ore and rock fell from the roof of said stope, over, against, and upon the plaintiff, and inflicted upon him serious injury, as a result of which he is and will continue to be, lame and crippled, and unable to perform any work calling for the exercise of physical exertion.

The defendant, in its amended answer, denied that the ore and rock in the mine were loose or liable to cave; denied that the roof of the stope was or had become dangerous or unsafe or that it had been permitted to become dangerous or unsafe through any neglect on the part of the defendant; denied that a large mass of earth, ore, or rock fell from the roof of the stope and injured the plaintiff. And for a further defense to the action the defendant alleged, among other things, that at the time and place therein stated the plaintiff was in the employ of the defendant as a miner, and was then operating a drill, and that one J. M. Davy was the shift boss of the men engaged in the work, and was a fellow servant of the plaintiff; that the face of the slope runs about two feet in advance of the timbers which were placed in the excavation to support the roof and walls, and that the machine that the plaintiff was using was placed under the timbers, which the defendant had caused to be placed there as fast as could be done in advancing the work; that the said place was perfectly safe and secure, and that no loose rock existed in the roof or walls; that the plaintiff had been directed to put his drill against the upper face of the stope, in solid rock, so as to make a hole that would be of service in extending the stope; that lower down in the face there was some rock that had been loosened by previous work, which was intended to be barred down, and was not to be drilled; that the plaintiff, instead of doing as directed, and as a miner should have done, set his drill rod against said loosened rock, though admonished by his associate miners not to do so, and proceeded to drill into the same; that such drillwork had the effect of further loosening the rock, and finally to dislodge it, and that it fell towards the plaintiff, but without injury; that no rock whatever fell from the roof of the stope, and that the rock and debris that caused the alleged injury to the plaintiff was the result of his disobedience of the orders of the foreman, and in no respect was it the result of want of care on the part of the defendant, or of the foreman in charge; that the timbering in the stope at the time was sound, safe, and perfect; and that, if the plaintiff had exercised reasonable care, no accident could have occurred. It was further alleged that the plaintiff knew at the time of the alleged injury of the condition of said stope, and the danger, if any, and assumed the risk thereof. It was also alleged that the injury to plaintiff was not incurred by reason of the matters stated in the complaint, but in consequence of a fall which occurred to the plaintiff on his way home from the mine.

The plaintiff testified that at the time he was injured he was working in a chamber next to the top in the stope; that he was set to work in that chamber on the morning of the accident by John M. Davy, the shift boss or foreman. The plaintiff had worked the day previous two floors below in the stope, but on the morning of the accident the shift boss had set him to work in this particular chamber, and showed him where to drill. He testified that the rock in front of him was solid; that he knew the face where he was drilling was solid and good. To the left there were two sets of timbers out, and his testimony was to the effect that the rock that came down, and injured him came from this untimbered section.

W. E. Wear, a mucker, who was working about 15 feet from the plaintiff at the time of the accident, testified that he saw the shift boss when he came in that morning and told the plaintiff where to put in the holes. The shift boss pointed out the places where the plaintiff was to put in the holes. He testified further that the ground seemed to be in fair condition, as far as he noticed; that the plaintiff set up his machine, and went on drilling in the face of the stope; that at about 10 or half past 10 in the morning he heard some falling ground. He saw the ground coming down. He saw the plaintiff fall, and his light was knocked out, but his machine still kept running. After the accident the witness went up on the next floor, and found that ore had been worked back too far before timbers had been put in; that it was peculiarly dangerous, from the fact that there were no stulls or sprags running from the timbers up to hold the ground in case it should slough or become air-slaked; that there should have been a sprag or a short stull put up from the timbers to the ground, to steady and support it. It was the duty of the shift boss to see that it was done. It was no part of the duty of the machinemen to see whether it was done or not. The machinemen were not supposed to be working under that ground. The witness was questioned in his direct examination in respect to the work that was being done in this part of the mine at the time of the accident. The questions and answers were as follows: 'Q. In order to do that work in a proper way, should this ground up here have been inspected before a man was put in there? A. It should have been; yes sir. Q. Whose duty was it to do that? A. It was the shift boss' duty. Q. If he had put these timbers in here, or this square set in here, that accident would not have happened to him? A. Oh, no; it could not have happened, because the rock could not have fallen. Q. In the absence of that, if they had put these sprags in, and held that up, that injury could not have happened? A. I don't think it could. Q. If this ore had not been worked out up here too close to there, would that probably have happened? A. No; because it would have rested over on these timbers. There would have been nothing to come down. ' This evidence tended to show that the accident was caused by rock falling from above and to the left of where the plaintiff was working, and from ground unsupported by timbers.

The testimony on the part of the defendant tended to show that the stope where the plaintiff was set to work was completely timbered; that there was no ground near to the plaintiff that was not timbered at the time he was hurt; that there was a crack in the breast of the stope upon which he was set to work; that above this crack the stope was solid, but, below it, it was shattered and had settled down; that the plaintiff started to drill below the crack in the loose, shattered ground; that a fellow workman told plaintiff he had better bar that ground down; that he did not follow this advice, and the loose ground came down and rolled over, falling from the face of the stope in front of the plaintiff. The defendant also introduced testimony tending to show that plaintiff was not seriously hurt, but continued his work...