Daniels v. Granite Bi-Metallic Consolidated Mining Co.
| Decision Date | 17 October 1919 |
| Docket Number | 4024. |
| Citation | 184 P. 836,56 Mont. 284 |
| Parties | DANIELS v. GRANITE BI-METALLIC CONSOLIDATED MINING CO. |
| Court | Montana Supreme Court |
Appeal from Third District Court, Granite County; Geo. B. Winston Judge.
Action by William Daniels against the Granite Bi-Metallic Consolidated Mining Company. From judgment for plaintiff, and from an order denying its motion for new trial, defendant appeals. Judgment and order affirmed.
W. E Moore, of Phillipsburg, and Walker & Walker, of Butte, for appellant.
J. J McDonald, of Phillipsburg, S. P. Wilson, of Deer Lodge, and J. J. McCaffery, of Butte, for respondent.
The defendant, Granite Bi-Metallic Consolidated Mining Company owned and operated the Granite mine, near Phillipsburg, Mont., and also leased certain ore bodies in the mine to other persons to work on a royalty basis. The facilities of the mine were at the service of the lessees as well as the employés. To govern the use of the cage, certain signals prescribed by the state mine inspector were in use. The signals to lower and hoist were given by means of a gong in the engine house, on the surface. To the striker of the gong was attached a small wire cable which extended down the shaft and at each level was fastened to a lever. By pulling down upon the lever, the gong was sounded. On the day of the accident plaintiff and his partner, McDonald, were on the 700 level to procure samples with a view to securing a lease of ore bodies at that level. Having secured the samples, they returned to the shaft, gave the required signal, and the cage was lowered. McDonald, with the samples, stepped upon the cage, and plaintiff undertook to give to the engineer the signal (three bells) to hoist men to the surface. When one bell had been given, the cage was suddenly hoisted, with the result that plaintiff was thrown violently to the floor of the station, receiving the injuries of which he complains.
It is charged in the complaint that the defendant, by its engineer, was guilty of negligence in moving the cage before the signal was completed, and that this negligence proximately caused the injury. By its answer defendant denied any negligence on the part of the engineer, and alleged that plaintiff was guilty of contributory negligence in that he stood with one foot on the cage and the other on the floor of the station while giving the signal to hoist. In his reply plaintiff admitted that he stood with one foot on the cage and the other on the floor of the station, but denied that he was guilty of negligence in so doing.
The trial resulted in a verdict for plaintiff, and from the judgment entered thereon and from an order denying it a new trial defendant appealed.
For the purpose of this case it is immaterial whether plaintiff was in the mine by direction or invitation of the defendant. The court instructed the jury that the defendant owed to plaintiff the duty to exercise reasonable care and diligence for his safety. This instruction was given without objection from either party and became the law of the case upon that subject.
Plaintiff and McDonald testified that plaintiff had given one bell and was in the act of giving the second one when the cage was moved, and that plaintiff was proceeding in the customary manner without unnecessary or unreasonable delay between bells. The engineer testified very positively that he had received a complete signal, not a signal to raise men to the surface, however, but the proper signal to hoist ore or the empty cage to the surface, or the cage with men to the next level above, and that he took the cage to the 600 level.
It is stated in appellant's brief that "this testimony is not susceptible to contradiction by inference." It is, however, contradicted by the direct evidence of plaintiff and McDonald; but, however this may be, it has been said:
The Odin, 1 A. Rob. 248; Zibbell v. Southern P. Co., 160 Cal. 237, 116 P. 513; Rood v. Murray, 50 Mont. 240, 146 P. 541.
The engineer based his conclusion that the signal was complete upon the fact that he observed the bell cord slacken, and not upon the fact that he waited a reasonable time to ascertain whether the bell would be sounded again. The rules and regulations of the mining inspector were binding upon defendant and its engineer (§ 1724, Rev. Codes), and for damages proximately caused by the unauthorized act of the engineer, in substituting a code of his own, the defendant is liable (5 Labatt on Master & Servant, § 1888). In other words, a violation of the prescribed code constituted legal negligence. Melville v. Butte-Balaklava Copper Co., 47 Mont. 1, 130 P. 441.
It is not seriously contended, however, that the evidence is insufficient to prove negligence on the part of the engineer. The principal contention is that the admission in the reply and the evidence introduced by plaintiff established contributory negligence as a matter of law. The standard by which to measure plaintiff's conduct is that of the average man under similar...
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