Cummings v. Helena & L. Smelting & Reduction Co.

• Decision Date: 29 April 1902
• Citation: 68 P. 852,26 Mont. 434
• Parties: CUMMINGS v. HELENA & L. SMELTING & REDUCTION CO.
• Court: Montana Supreme Court

68 P. 852

26 Mont. 434

CUMMINGS v. HELENA & L. SMELTING & REDUCTION CO.

Supreme Court of Montana

April 29, 1902

Appeal from district court, Jefferson county; M. H. Parker, Judge.

Action by Martin Cummings against the Helena & Livingston Smelting & Reduction Company. From a judgment in favor of defendant plaintiff appeals. Affirmed.

T. J Walsh and C. B. Nolan, for appellant.

Cullen Day & Cullen, for respondent.

PIGOTT J.

The plaintiff, having suffered personal injuries in a mine situate in Jefferson county and operated by the defendant brought this action to recover $35,000 as damages. The injuries are alleged to have occurred through the defendant's negligence. When the plaintiff rested, the court granted a nonsuit upon several grounds, one being that the plaintiff had assumed the risk of the accident which occasioned the injury, and another being that he had been guilty of contributory negligence. Judgment for the defendant was then entered, and the plaintiff has appealed.

On motion for nonsuit, whatever the evidence is sufficient to prove in favor of the plaintiff must be considered as established; in other words, when such motion is interposed, the truth of the evidence tending to support the plaintiff's case must be assumed, and must be regarded in the light most favorable to him. That which the evidence tends to show must be taken as proved. This well-settled rule has been repeatedly declared and applied by this court. No less well settled is the rule that if the plaintiff, in attempting to make a case, shows that he ought not to recover, either a nonsuit should be entered or a verdict directed on motion, whichever practice prevails in the particular jurisdiction. In this state, nonsuit is the technically correct method. McKay v. Railway Co., 13 Mont. 15, 31 P. 999. In actions for personal injuries the absence of contributory negligence is not required to be pleaded or proved by the plaintiff, but its presence is a matter of defense. Such is the law in Montana. Higley v. Gilmer, 3 Mont. 90, 35 Am. Rep. 450; Mulville v. Insurance Co., 19 Mont. 95, 47 P. 650; Snook v. City of Anaconda, 25 Mont.--, 66 P. 756. The contrary rule was announced in Ryan v. Gilmer, 2 Mont. 517, 25 Am. Rep. 744, but has been overturned by the cases cited and those referred to by the opinions therein. If, however, the complaint shows the proximate (or a proximate) cause of the injury to have been the act of the plaintiff, the complaint must also state his freedom from negligence in the doing of the act; otherwise the pleading is bad (Kennon v. Gilmer, 4 Mont. 433, 2 P. 21); and so, if the evidence in behalf of the plaintiff shows the injury to have been directly caused (either in whole or in part) by his act, the burden is immediately upon him to prove that he was exercising ordinary care at the time (Nelson v. City of Helena, 16 Mont. 21, 39 P. 905). Another rule, from which there seems to be no dissent, except in North Carolina (Bolden v. Railway Co., 123 N.C. 614, 31 S.E. 851; Cogdell v. Railroad Co., 124 N.C. 302, 32 S.E. 706; Powell v. Railway Co., 125 N.C. 370, 34 S.E. 530), is that if the evidence in plaintiff's behalf establishes, beyond question, that his own omission to use ordinary care contributed immediately to, or itself caused, the injury, the court should, on motion, direct a verdict or grant a nonsuit. The motion for a nonsuit in the case at bar was similar to the common-law demurrer to the evidence, in that it performed the office of admitting as facts what the evidence tended to prove, thereby presenting the question whether the facts so conceded, when viewed in the light most favorable to the plaintiff, were, as matter of law, sufficient to justify a verdict for him. So considering the evidence, the facts may be stated thus: On Saturday, September 28, 1895, the plaintiff, aged 33 years, a practical miner of 16 years' experience, familiar with the risk and dangers incident to the hazardous occupation, was severely injured by a fall of rock in the Alta mine, operated by the defendant, a corporation. He had been so in the employ of the defendant and working for it as an underground miner in the Alta mine since 1892. For many years he had operated a machine drill used for boring holes in tunnels and raises so that blasting might be done. When hurt he was engaged in constructing a three compartment inclined raise on the vein, following the foot wall, from the 1,200-foot level to an intermediate tunnel 80 feet distant. The raise departed from the perpendicular at an angle of about 45 degrees, the dip of the vein. Each compartment was a separate chute. The middle one was the manway. The others, one on each side of the manway, were used for ore. Four sets of timbers were needed to make the three compartments. These consisted of four equidistant stringers, or uprights, next to the hanging wall; four stulls or crosspieces, 8 to 10 feet in length (according to the pitch of the walls) attached to, and supporting the top of, the stringers, and reaching from wall to wall; three "girds," or girders, laid on top of the stringers, and parallel with the strike or course of the vein, and running from stull to stull. The stulls supported the stringers, and the girders served to keep both in place. Each three-compartment section of the raise was about 6 1/2 feet in height, by 13 feet in length, each room or compartment being about 4 feet and 4 inches in length along the lode on its strike or course, which is east and west. When the ground did not blast so as to permit the stulls and stringers to fit snugly against the country rock, the stringers were lagged crosswise, with round poles 4 feet and 4 inches in length, and then the space between the lagging and the hanging wall was filled in with waste, so as to keep the timbers secure. To make a floor, lagging of the same sort was laid on top of the timbers from stull to stull, and across the openings leading up to the face of the raise. The machine was set upon the floor, and the holes drilled overhead in the face. Each set of four timbers carried the raise 6 1/2 feet further towards the tunnel. A floor was not left on each set of timbers, but whenever advance of a set higher 6 1/2 feet had been made, the lagging of the lower floor of the last set would be moved up and the top flooring of that set left, so that there were always two floors lagged in whole or in part. The top or upper floor was always left open,--that is, without lagging,--on the side not blasted, in order that the miners might gain ingress to it from the floor below and see the face of the ground. After drilling and before blasting, the space between the timbers immediately under the ground to be blasted was always lagged. This was done as a measure of protection to miners going to the lower floor. With the upper floor (or top of the timbers) tightly lagged under the ground blasted, or about to be blasted, a man could, with a reasonable degree of safety, reach the lower floor, cross to the side or end over which blasting had not been, or was not about to be, done, and then go to the upper floor through the opening left under the solid ground. The plaintiff testified: "As we went up we would set the machine for the purpose of drilling on one of these floors,--the bar set on one of those floors that would be lagged up. We put lagging on top of the timber too, and that made a floor, and from that floor we bored above us. As we proceeded with the work, we did not leave these floors on each set of timbers. When we would get up a set higher, we would pull up the under floor and move it on up again. We kept two floors all the time. We would pull the one below up; when we put a set of timbers above, we would pull

the lower floor up and move up. We ascended the upraise to get where we were working through a ladder constructed in this manner. As the work was carried up we always left the top floor open on the side that was not blasted out; so that a man could get through there and see the face of the ground that was left, and also see the ground where it was blasted." If, for example, the ground in the eastern part of the face of the raise was about to be, or had been, blasted, the opening would be left on the western side or end under the secure ground. "In the place where it had not been blasted, it [the floor] would be left open, so that when I came up in the morning, by looking up I could see the face of the ground where the blasting had been done. We put lagging on the floor immediately under the place where we were going to blast, because that is where the man would come up on the first floor; if that floor was left open and a man would go up there, there would be nothing to protect him over his head, but with that floor lagged up a man would go up and cross over to the side that was not blasted, and then he would go up there."

For thirteen days before, and on the day of, the accident, the plaintiff was working on the day shift. One Running, his fellow servant, was working on the night shift, and had been operating the drilling machine for a month. Running would quit work at 10 minutes after 5 o'clock in the morning and plaintiff would begin at 10 minutes before 7, --about 1 1/2 hours thereafter. Running had but little experience with the machine. He sometimes bored holes which inclined away from, instead of toward, the center of the raise, and which, when fired, failed to blast down the ground. The effect of this was to shake the ground and make it unsafe. In order to drill the holes properly, so that the ground, when blasted, would come down easily, it was necessary to set the machine on one side of the raise and bore the holes toward the center over the manway, and then remove the machine to the opposite side and bore the...