Davis v. Trade Dollar Consol. Min. Co.

• Decision Date: 05 May 1902
• Docket Number: 763.
• Parties: DAVIS v. TRADE DOLLAR CONSOL. MIN. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

117 F. 122

DAVIS v. TRADE DOLLAR CONSOL. MIN. CO.

No. 763.

United States Court of Appeals, Ninth Circuit.

May 5, 1902

The plaintiff in error was an experienced miner, engaged in the work of driving a tunnel in the mine of the defendant in error. The work was being continuously conducted by three shifts of men, working eight hours each. In each shift there were seven men, one of whom was the foreman or shift boss. Each shift operated two Burleigh drills, and bored from nine to seventeen holes in the face of the tunnel, which were charged with blasting powder and exploded, after which the shift retired to give place to the succeeding shift. At times some of the blasts failed to explode. It was the custom of the men of the retiring shift to note the number of explosions, and inform the incoming shift how many, if any of the blasts remained unexploded. On May 26, 1900, at 7 o'clock in the morning, the plaintiff in error, with his shift, went into the tunnel to work. The foreman of the shift that had just gone off informed the incoming shift that there were two shots the reports of which had not been hears,-- a back hole and a lifter. A back hole is a hole in the top of the tunnel, going in straight, and a lifter is one that goes in down on the ground at the bottom of the tunnel. After so being informed the plaintiff in error went into the tunnel, and examined the fact of it, and found one unexploded back hole on the left-hand side of the tunnel, and on the right-hand side, at the bottom of the tunnel, he saw a pile of muck or debris behind which he supposed was the unexploded hole in the bottom. The fact was that the second unexploded hole was in the breast of the tunnel. The fact that it was unexploded was not discernible upon a casual examination, for the reason that the other blasts had broken off a portion of the rock into which it was sunk. This happened occasionally, and that it might occur at any discharge of the blasts was a contingency to be reckoned with. The shift to which the plaintiff belonged began working with their two drills. While they vere so working, one of the drills bored into or near the unexploded blast, and caused it to explode, killing two of the men outright, and very seriously wounding the plaintiff in error. For the injuries so sustained the plaintiff in error brought this action against the defendant in error, alleging in his complaint, in substance, that it was the duty of the defendant in error to keep the plaintiff in error informed as to whether all the holes drilled and loaded by the previous shift had been exploded; that, by the exercise of ordinary, care and prudence, it might have known that some of the holes fired by the preceding shift had failed to explode; that the plaintiff in error was injured by reason of the negligence of the defendant in error in failing so to inform him. Upon the trial of the case, after the plaintiff in error had rested his case, the court instructed the jury to return a verdict for the defendant in error, on the ground that, if the plaintiff in error was injured by the negligence of the foreman of the preceding shift, it was the negligence of a fellow servant. This ruling of the court the plaintiff in error makes the subject of his principal assignment of error.

James H. Hawley and Wm. H. Puckett, for plaintiff in error.

Richard Z. Johnson, Richard H. Johnson, and John F. Nugent, for defendant in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge, after stating the case as above, .

We think the ruling of the trial court was clearly correct. Not only was the foreman of the shift of men who retired from the tunnel just before the shift to which the plaintiff in error belonged went in to work a fellow servant with all the members of that shift, within the doctrine of Mining Co v. Whelan, 168 U.S. 86, 18 Sup.Ct. 40, 42 L.Ed. 390, and Railroad Co. v. Conroy, 175 U.S. 323, 20...