Bunt v. Sierra Buttes Gold Min. Co.

• Decision Date: 02 September 1885
• Citation: 24 F. 847
• Parties: BUNT and others v. SIERRA BUTTES GOLD MIN. CO. [1]
• Court: United States Circuit Court, District of California

24 F. 847

BUNT and others v. SIERRA BUTTES GOLD MIN. CO. ^[1]

United States Circuit Court, D. California.

September 2, 1885

J. C Black, for plaintiffs.

Harry I. Tornton and Eugene R. Garber, for defendant.

SAWYER J.

At the conclusion of plaintiff's testimony in this case on yesterday, the counsel for the defendant moved the court to instruct the jury to find a verdict for the defendant, on the testimony introduced by the plaintiff, on the ground that upon the case made by the plaintiff's evidence, all taken as true, the defendant is not liable; that, taking the evidence in its strongest light against the defendant, the plaintiff presented no case upon which she is entitled to recover. In such cases a motion of this kind is the proper practice in this court. The application is a substitute for a motion for nonsuit in the state courts. This court never grants a nonsuit; the proper motion being to instruct the jury to find a verdict for the defendant. This case, like many others of a somewhat similar character that I have had occasion to try, is one that necessarily excites sympathy in favor of the plaintiff. We are bound, however, to be governed by the rules of law, and the legal rights of the parties. On an examination of the authorities presented by the counsel last night, and in view of numerous others that I have before had occasion to examine, I am satisfied that this is not a case in which the plaintiff is entitled to recover. All of the numerous cases cited by plaintiff's counsel have other features that distinguish, them from this case and cases like it.

Taking the evidence presented by plaintiff as all true, and viewing it in the light most favorable to her, it does not present a case in which, under the law, she is entitled to recover. In excavating the tunnel, the roof, according to all the testimony, was left solid at first. It was originally a roof of solid rock, but subsequent blasts beyond had somewhat shattered it. In October, and just before the accident which caused the death of the plaintiff's husband, the superintendent of the mine was in the tunnel, and he saw that the roof looked somewhat shattered. He examined it, striking the roof at various points with a pick, and found that it might be dangerous. He thereupon directed those working in the tunnel, of whom the deceased was one, to put in a set of timbers to support the roof. There was one post only there but, according to the testimony, which was not contradicted, it was not put there to support the roof; but placed in a narrow seam in the side of the tunnel, to prevent the light, soft vein matter from running into the tunnel from the side; and not for the purpose of supporting the roof. One of the two men in charge,-- there being two in equal authority, of whom the deceased was one,--George Dubourdieu, asked the question, if it would not be better to remove that post, and put in the set, so that one of the posts of the set should stand in the same cut occupied by the post already there. The superintendent told him that if they thought they could do it with safety, they might do it in that way; but to satisfy themselves that it would be safe before moving the post, and if it would not be safe, to set one of the posts of the new set by the side of that post, a little beyond it. The deceased with George Dubourdieu and the others had a conference on the subject, and considered the question whether they could remove the post there standing with safety, and they came to the conclusion that they could. They acted on their own judgment. Both deceased and George Dubourdieu were experienced miners, who had been a long time at work in this tunnel, and were doubtless as well informed on the question, and as well qualified to judge of the safety of the act, as the superintendent himself. On examination deceased assented to the conclusion with the others. They discussed the question, and concluded that they could remove the post without danger, and put one of the set in its place. They proceeded to do that. The post was knocked out. The deceased assisted in moving it out of the way. He was just as well informed of the condition of that roof, and the dangers attending the work, as was the superintendent himself. He has consulted in regard to it, formed his own opinion as to the danger involved, and concluded that the removal could be made with safety. The men-- and he was one of the shift bosses-- acted on their own judgment in the matter. It is manifest that they were parties who were capable of judging of those matters. In proceeding to do that work, and knowing the danger, they voluntarily took the risk. I think this is a much stronger case for the ruling I make than McGlynn v. Brodie, 31 Cal. 376, in which the question arose on a motion for nonsuit, and where all the authorities on the subject are fully discussed. That was a case in the state court, and the nonsuit was sustained by the supreme court of the state. This is a much stronger case for the ruling I make than that case. So, in Kielley v. Belcher S. Min. Co. 3 Sawy. 502, which was a case in Nevada, not clearer than this, I was compelled to rule in favor of the defendant. The deceased in this case was just as well informed as the defendant or the superintendent himself was, and voluntarily, with knowledge of the danger, assumed the risk of the work. It was not, therefore, the fault of the defendant. In this case there was no defective machinery at all. It was the condition of the roof in the tunnel, produced in part by the act of the deceased in blasting.

If the accident could be regarded as the result of the carelessness of George Dubourdieu, the latter was a fellow-servant, and there is no liability on that ground. Buckley v. Gould &amp C.S. Min. Co. 8 Sawy. 395; S.C. 14 F. 833. But deceased had equal authority with George Dubourdieu, and he himself was consulted, and the negligence was as much his own as of George Dubourdieu. More than that, at the moment when the accident happened the deceased was not actually engaged in doing anything relating to that matter. His duty at the time of the accident did not require him to be in the position of danger at all. He had performed the duty of removing the post from the place, and put it out of the way, and he was at the time not engaged in the performance of any duty connected with the work. Having a little leisure, while the other workmen were clearing out the place to put in the other timbers, he sat down to rest himself, and deliberately sat directly under the shattered roof. Knowing its condition, he voluntarily selected that place for a seat upon which to rest himself. He was doing nothing at the time. There was, at that time, no occasion at all for him to sit or be at the point where the accident occurred. He assumed voluntarily, for his own convenience and comfort, the responsibility of selecting that particular place in which to sit, and he sat immediately under the shattered rock. The space shattered was only four of five feet wide. If he had selected a place in which to sit two feet further out, he would have been clear of danger, and would have escaped. After his attention had been called to the condition of the roof, and having discussed the question as to whether it was safe to take this post out, and at a point of time when he had nothing at all to do with the work,-- no duty to perform in connection with it,-- he deliberately, of his own accord, sat down directly under the dangerous place; whereas, if he had selected a place two feet or more further out he would have been out of danger. That is an act of his own, and the company cannot be held responsible for the consequences resulting from it. Knowing all the circumstances of the case, he performed that act for his own comfort, and while sitting at the point so selected by himself, under the circumstances indicated, the rock fell. He was evidently on the lookout, for he was the first to discover the giving away of the rock, and he called out to the others, 'Boys, it is coming,'...