Creede United Mines Co. v. Hawman

• Citation: 127 P. 924,23 Colo.App. 125
• Court: Court of Appeals of Colorado
• Decision Date: 11 November 1912
• Parties: CREEDE UNITED MINES CO. v. HAWMAN.

127 P. 924

23 Colo.App. 125

CREEDE UNITED MINES CO. v. HAWMAN.

Court of Appeals of Colorado

November 11, 1912

Appeal from District Court, Mineral County; Charles C. Holbrook Judge.

Action by James W. Hawman against the Creede United Mines Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

William E. Hutton and Thomas, Bryant & Malburn all of Denver (Bruce B. McCay, of Denver, of counsel), for appellant.

James P. Veerkamp, of Monte Vista, for appellee.

HURLBUT J.

Action commenced August 19, 1908, by appellee, plaintiff below, against appellant, defendant, to recover for personal injuries. From a judgment in favor of plaintiff, this appeal is prosecuted.

The material allegations of the complaint can be briefly stated as follows: Plaintiff entered the employment of defendant on February 20, 1907, as a miner. He worked under the immediate direction of defendant's foreman, and on the date of his employment was assigned to work as a miner in one of the stopes of defendant's mine. While he was working in said stope on the 27th day of February, 1907, a large mass of rock and other substance from the roof of the stope fell upon him and caused the injuries of which he complains. He was thereby damaged in the sum of $40,000, and suffered special damages to the amount of $1,000, spent for services of physicians, surgeons, and nurses, and the expenditure of large sums for medicines. That defendant, being unmindful of its duties, permitted its mines, drifts, and stopes to become unsafe, and did carelessly and negligently allow the same to remain in an unsafe condition, and carelessly and negligently failed to equip said mines, drifts, and stopes with proper appliances and timbers. That defendant's foreman knew that large masses of stone and rock in the roof of said stopes had become loosened and unsafe, notwithstanding which he carelessly and negligently allowed the same to remain in said unsafe condition. That said foreman told plaintiff the mine was in a safe condition. That plaintiff did not know of such unsafe condition. That, believing such statement made to him by the foreman, plaintiff entered said mine and proceeded to perform labor therein under his employment. That the injuries were caused wholly by and through the carelessness and negligence of defendant and defendant's superintendent, and were in no wise the result of any negligence on the part of plaintiff.

Defendant's answer admits the employment of plaintiff as stated in the complaint, and his continuous service as a miner from February 20th to February 27th, 1907, denies all allegations of the complaint not specifically admitted, and for an affirmative defense alleges that at all times mentioned in the complaint plaintiff well knew the conditions then existing in and about the mine where the injury occurred, and well knew every risk and danger incident thereto, and assumed each and every risk and danger incident to the conditions in and about said mine and mining properties, and in and about his presence at the mine and in the stope, and assumed the risk and danger of the accident and injuries; that the accident and injuries complained of by plaintiff were caused and contributed to by the negligence, fault, and omission, and want of care and caution, on the part of plaintiff himself. Replication put in issue all new matter stated in the answer.

In order to better understand the situation as presented on this appeal, it might be well to briefly state what appear to us to be undisputed or admitted facts in the case, viz.: Plaintiff was a miner of 15 years' experience, and was a capable man in any kind of mining work. A day or two before February 20th, the day of his employment, plaintiff had a conversation with Frank Smith, defendant's foreman, and asked him for a job. He was told in reply to stay around for a day or two, and he would give plaintiff a job in a good, safe place to work. When Smith employed plaintiff, he took him to the station and told Joe Cramer, the shift boss, to put him to work in the big stope, which was from 11 to 18 feet wide, and from 7 1/2 to 14 feet high. Plaintiff was not assigned to work at any particular place in the stope, but used his own discretion in selecting such place. The stope was at least 100 feet long. The morning of the injury plaintiff was building a crib, by which to get up to the ore in the roof of the stope, and was injured while so employed. Two shifts were working in the stope; plaintiff being on the day shift. The men working on the day shift worked over a distance of about 100 feet. Plaintiff had been working at the same place in the stope for about six days, and had, during that time, been blasting, mining, and taking down rock and ore. During these six days plaintiff had been taking down vein matter in different places, wherever it was handiest to the chute, and had drilled holes and shot them. Other men had done the same. The vein matter was between the hanging and foot wall. There was some waste; but it was nearly all ore. The night shift did the same kind of work as plaintiff's shift. The day before the accident plaintiff had been drilling and blasting. More or less ore was taken down out of the vein during the time plaintiff was working in the stope--usually four or five tons to a shift. Plaintiff did not observe the roof at the place where he was working, but had observed other portions of it. The ground appeared to plaintiff to be solid. No one was helping him. When he went to work the morning of the accident, he did not make any inspection. The crib was not built directly under the rock which fell. Plaintiff did his own work, and paid no attention to what other men of the shift were doing, and did not regard the place where he was working as dangerous, and did not sound the roof the morning he was injured. The roof varied in height. Where the crib was built, it was 11 feet high from the floor to the roof. On the morning of the accident plaintiff picked out his own place to work. After plaintiff had worked a week in the stope, he concluded the same was safe. He was building the crib from material lying around the stope, which he hunted up. There were planks enough at the stope to build a platform 5 or 6 feet square. Ground which is exposed from time to time is liable to slack, and plaintiff expected to find such conditions when he was mining. It is the common practice among miners, when working under a place, to see if the ground above is liable to remain there while so working. Plaintiff did not, at any time during his employment, complain to the shift boss or the foreman about the stope not being properly timbered. Plaintiff used the material at hand to build the cribbing. There were six, seven, or eight planks there at the time. The stope was a filled stope, and the miners working there attended to filling it. The day before the accident no cribbing was necessary to get up to the rock in the roof, as it was only 4 or 5 feet from the ore pile on the floor.

Negligence is the gravamen of this action. The doctrine is well settled in this state that, in actions between employés and employers for personal injuries, no presumption of negligence arises from the happening of an accident. D. & R.G.R.R. Co. v. McComas, 7 Colo.App. 121, 42 P. 676; Bishop v. Brown, 14 Colo.App. 535, 61 P. 50; City of Greeley v. Foster, 32 Colo. 292, 75 P. 351. The only carelessness and negligence charged against defendant in the complaint is that it allowed and permitted its stopes, etc., to become unsafe, and allowed the same to remain in such condition, and failed to equip the same with proper appliances and timbers, in order to prevent the same from being unsafe; that defendant knew rock in the roof of the stope was loose and unsafe and allowed the same to remain in such condition; that defendant was negligent in not equipping the stopes, etc., with appliances and timbers, in order that they might be used to prevent injuries and accidents to employés. In a bill of particulars plaintiff interpreted "appliances," as used in the complaint, to mean "square sets of timbers, stulls, and lagging."

It is undisputed that the stope was a filled stope, which, as defined by witnesses, is one where the waste rock taken out of the vein is left on the floor of the stope, thus raising the floor as work proceeds. When there is insufficient material from the vein matter to raise the floor of the stope, as the ore is taken from the roof, it is the custom to blast into the adjacent walls to obtain sufficient filling matter; the object being, in practical mining, to keep the floor of the stope at all times conveniently close to the roof, in order that the miner may, while standing on the floor, be able to drill holes in the roof and blast out the material. It is clear, then, that in such a stope no timbers, stull timbers, or lagging, are necessary, or could be used therein, unless it could be said that lagging might be used to construct a crib, such as plaintiff was building at the time of his injury; but as to this plaintiff gathered other material with which to build the same from around the stope. The allegations, then, of negligence on the part of defendant for not keeping on hand near the stope "square sets of timbers, stulls, and lagging," so as to prevent the stopes, etc., from being unsafe, may be eliminated from consideration.

In mining parlance a stope has a definite, fixed meaning; and every miner of experience knows what is meant when speaking of a stope. It is defined in various ways by lexicographers and text-writers. By Morrison as follows: "The working above or below a level where the mass of the ore body is broken." By Webster's New International Dictionary as follows: "Any excavation for...