Bunker Hill & Sullivan Mining & Concentrating Co. v. Kettleson

• Decision Date: 04 March 1903
• Docket Number: 855.
• Citation: 121 F. 529
• Parties: BUNKER HILL & S. MINING & CONCENTRATING CO. v. KETTLESON.
• Court: U.S. Court of Appeals — Ninth Circuit

121 F. 529

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

No. 855.

United States Court of Appeals, Ninth Circuit.

March 4, 1903

This action was brought by Gunder Kettleson, a citizen and resident of the state of Washington, against the Bunker Hill & Sullivan Mining & Concentrating Company, a corporation organized and existing under the laws of the state of Oregon. The defendant's mine is located in the state of Idaho. The plaintiff was engaged in this mine, and while so employed was injured. The present action is to recover damages for the injuries resulting form the alleged negligence of the defendant in not providing a safe place for the plaintiff to do the work in which he was employed. The workings of the mine were being extended to an ore chamber that had been formerly opened, but not used for 18 months or more. The chute and manway leading up form one of the levels of the mine to this chamber were to be cleaned out, and the plaintiff had been directed by the shift boss to put in some lagging in the bottom of the chamber. It was alleged in the complaint 'that the chute where this plaintiff was ordered and directed by the defendant to work sloped to the bottom thereof, a distance of 90 and more feet, at an angle of about 90 deg., and was dangerous and unsafe for this plaintiff and other workmen to work at said point and place that this plaintiff then and there refused to work at said place, and notified the foreman of said mine in charge of this plaintiff (one Bishop) that the said place was unsafe and dangerous, and that plaintiff could not work at said point and place as aforesaid unless the defendant would provide suitable ropes, ladders, and support at said point and place, whereupon the said Bishop did then and there provide a certain rope, and caused the same to be attached to the timbers along the said chute, and did then and there promise and agree with this plaintiff, on behalf of said defendant mining company, that the said rope should be then and there maintained, and that a ladder should be placed in said chute, so as to render the place where the plaintiff worked safe and secure, and to provide proper and adequate means for this plaintiff to save himself in case that the rock, ore, debris, or earth in any manner gave way, and this plaintiff as aforesaid, at all the times herein mentioned went to the said place, being assured that the same was safe and that the said defendant would cause said rope to be and remain in place, and would forthwith place a ladder in said chute at the point where this plaintiff was working, and did then and there rely and believe it was assured by the said defendant that each and all of said precautions as aforesaid would be taken to render said place safe; and this plaintiff continued to work at said point and place solely on account of said assurances and promises on the part of the said defendant company, which plaintiff fully believed and relied upon. ' The plaintiff further alleged that while he was working at said point and place 'the rock, ore, and debris there, negligently and carelessly suffered to be and remain by the said defendant company, gave way under the feet of this plaintiff; that this plaintiff thereupon attempted to catch the said rope and the said ladder, and plaintiff would have been able to have so caught the same, had the same been at the point agreed upon between the plaintiff and defendant, and at which place the plaintiff then and there believed and relied upon its promise that the same would be, but that the said defendant mining company negligently and carelessly removed, or caused to be removed, or permitted to be removed, the said rope theretofore placed, and carelessly and negligently omitted to place said ladder at said place, or to take any precaution to preserve the safety of this plaintiff; that there was no other means or method whereby plaintiff could save himself, and at the time said ore, debris, and rock, carelessly and negligently permitted to be there and remain by the said defendant company, gave way under the feet of this plaintiff, without any fault or want of care and caution on his part; that plaintiff fell and rolled over and along said chute a distance of ninety and more feet. ' The answer of the defendant specifically denied these allegations in plaintiff's complaint, and alleged 'that with full, complete, and perfect knowledge of the chutes, manways, and stopes in defendant's mine, and of the construction and condition thereof, and of the business of placing lagging in stopes, and of the danger attending such work in defendant's mine, voluntarily undertook to place some lagging in a stope in said mine at a point reached by a chute above sixty feet in length, the first or lower thirty feet of which is constructed at an angle of about fifty-five degrees, and the remaining thirty feet at an angle of about forty-two degrees; that said lagging was to be placed in a stope at the top of said chute; that said plaintiff, with knowledge of the said mine and of the business he undertook, and the dangers attending the same, voluntarily undertook said work, and assumed all the risks and dangers ordinarily incident thereto, among which the danger of falling down said chute was included; that before commencing work in said chute, said plaintiff, at the suggestion and upon the recommendation of the defendant's foreman, under whose immediate direction said plaintiff was at work, placed a rope furnished by defendant along the side of said chute as a safeguard in case of accident, which said rope was afterwards used by plaintiff; that a short time prior to the happening of the accident to the plaintiff hereinafter mentioned, without the orders, knowledge, or consent of the defendant, but with the consent and concurrence of plaintiff, carelessly and negligently given, said rope was removed and delivered to plaintiff's fellow servants, and was not returned for the reason that plaintiff informed his said fellow servants that he had no need of the same; that while at work alone, placing said lagging, for some cause to the defendant wholly unknown, plaintiff fell, and, by reason of his neglect in permitting said rope to be removed and to remain away, slid from the top of the chute, a distance of about sixty feet, to the bottom thereof, and by said fall and sliding received whatever injury was sustained by him. ' Plaintiff's reply denied the new matter set forth in the defendant's answer.

The plaintiff testified in his own behalf that he was 44 years of age, and had been a miner for 27 years. He had been a foreman, and had worked at all kinds of work about a mine. He had been working...