Dolphin v. Peacock Mining Co.

• Decision Date: 13 January 1914
• Citation: 144 N.W. 1112,155 Wis. 439
• Parties: DOLPHIN v. PEACOCK MINING CO.
• Court: Wisconsin Supreme Court

155 Wis. 439

144 N.W. 1112

DOLPHIN

v.PEACOCK MINING CO.

Supreme Court of Wisconsin.

Jan. 13, 1914.

Appeal from Circuit Court, Iowa County; George Clementson, Judge.

Action by Charles Dolphin against the Peacock Mining Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This action was brought to recover damages sustained by plaintiff on account of injuries received in the defendant's mine through the negligence of the defendant. The following verdict was returned:

“(1) Was the plaintiff injured on the 21st day of May, 1912, by the fall of a large stone that was a part of the south wall of the drift in the defendant's mine, which stone projected from the top of said wall over the place where the plaintiff was set at drilling by Cushman, the defendant's ground boss, who had the direction of the underground workings of said mine? Answer: Yes (by the Court).

(2) Before the plaintiff began to drill on the day in question, had the wall above the place where he was at work separated from the cap rock which formed the roof of the drift? Answer: Yes.

(3) Did said ground boss, before he set the plaintiff at work drilling at said place, know that the top of the wall at said place had, to some extent, separated from the cap rock that formed the roof of said drift? Answer: Yes.

(4) Should said ground boss, as a man of ordinary care, prudence, and experience as a miner, under all of the facts and circumstances have known that by reason of the separation of the upper stone of said wall from the cap rock at the place where he set the plaintiff at work was probably an unsafe place to drill and have warned the plaintiff of the condition of the wall? Answer: Yes.

(5) Did Cushman inform the plaintiff before the accident that the upper part of the wall where he set him at work had separated from the roof of the drift? Answer: No (by the Court).

(6) Was the plaintiff aware of the condition of the wall at that place? Answer: No.

(7) Was Cushman wanting in ordinary care (that is, was he negligent in setting the plaintiff at work drilling at the place in question without notifying him of the condition of the top of the wall), and ought Cushman, as a man of ordinary care, intelligence, and experience as a miner, to have reasonably foreseen, under the attending circumstances, that in setting the plaintiff to drill in that wall without warning him of its condition that as a natural and probable result of so doing it was to be reasonably apprehended that a personal injury to the plaintiff might probably result? Answer: Yes.

(8) Was the plaintiff guilty of any want of ordinary care which contributed to produce the injury he received? Answer: No.

(9) If the court should decide upon your answers to these questions that the plaintiff is entitled to recover, what sum of money will compensate him for the injury he received? Answer: $11,000.”

Judgment was rendered in favor of the plaintiff upon the verdict from which this appeal was taken.Aylward, Davies & Olbrich, of Madison, and T. M. Priestley, of Mineral Point, for appellant.

Fiedler & Fiedler, of Mineral Point, for respondent.

KERWIN, J. (after stating the facts as above).

The plaintiff was injured on the 21st day of May, 1912, while at work in the defendant's mine. He was employed as an assistant to the driller, one Byke. The mine is located in Iowa county, Wis. At the time of the injury it was being operated by running a drift 7 feet high and between 40 and 60 feet wide easterly from the main shaft and about 100 feet below the surface of the ground. The drift was carried through the rock to a point about 1,200 feet from the main shaft. The material being removed from the drift as it was carried eastward consisted of limestone, glass rock, clay bed, brown rock, and over the brown rock lay the cap rock, which formed the cap or roof of the drift. Supporting pillars of natural rock were left through the center of the drift. Also there were supports constructed by gobbing and timbering at different points along the drift. Gobbing consists of making piles of barren or non ore-producing rock extending from the floor to the cap rock or roof.

The accident occurred on the south wall or side of the drift, about 20 feet from the easterly end or forehead thereof. The work in the mine at the time of the injury was carried on by first drilling a series of holes either in the side wall or the forehead. These holes were loaded with sticks of dynamite which were exploded in the evening after the workmen had gone, and in the morning the drillers proceeded with their drilling in another part of the mine, and the shovelers cleaned the rock loosened by the blast, and the trammers carried the ore-bearing rock to the shaft over the tramway. A large rock in the south wall 4 1/2 feet from the floor and projecting 2 or 3 feet from the side wall up near the cap rock or roof and weighing from 3,500 to 4,000 pounds fell upon the plaintiff and injured him while he was engaged in assisting the driller.

The negligence alleged is that the defendant failed to furnish a safe place for plaintiff to work, in consequence of which unsafe and dangerous condition of the mine the plaintiff was injured by the fall of the rock in question; that the defendant had knowledge that the place was dangerous and failed to inform plaintiff thereof. The complaint also alleges that on the 21st day of May, 1912, or at any time prior thereto, the defendant had not filed with the Industrial Accident Board of Wisconsin a written statement to the effect that it would accept the provisions of chapter 50 of the Laws of 1911 of the state of Wisconsin, and the defendant was not on said day nor prior thereto subject to the provisions of said act. This allegation is admitted.

The several assignments of error will be considered in the order discussed in appellant's brief. It is first contended that a verdict should have been directed: (a) Because the undisputed evidence shows that the plaintiff was guilty of contributory negligence; and (b) that there was no evidence sufficient to warrant the jury in finding the defendant guilty of negligence.

1. Counsel for appellant makes no claim that assumption of the ordinary hazards of the employment is a defense, but insists that plaintiff was guilty of contributory negligence as matter of law, because he knew or ought to have known that the place was dangerous; that he was familiar with the premises and work and assisted in making the working place; that the mine was well lighted and the danger as obvious to the plaintiff as to the defendant's foreman.

On the part of plaintiff it is contended that no duty rested upon plaintiff or the driller Byke to inspect or prepare the working place for the driller, but on the contrary that duty was specially delegated to the ground boss, one Cushman, and that he and the shovelers were charged with that duty; that the mine was not well lighted and the danger not obvious and was unknown to plaintiff but known to defendant.

[1] The jury found that the plaintiff was not guilty of contributory negligence, and, under the repeated decisions of this court, the finding cannot be disturbed if there is any credible evidence to support it.

The evidence shows that it was the duty of the shovelers, under the charge and direction of the ground foreman, to make inspection after the blasting and test the rock with pick and hammer, and also examine the cracks in the rocks with the aid of a candle and clear away all loose rock; that no duty to inspect rested upon plaintiff or the driller. Their only duty was to drill after the place had been prepared for them; that, aside from the rocks removed by the blasting, other rocks are shattered or cracked but remain unmoved from the walls or forehead, so that careful examination and inspection becomes necessary in order to determine whether such rocks are dangerous to persons working under or near them.

[2] There is evidence that plaintiff did not know that the rock which fell and caused the injury was loose or dangerous, but counsel says he should have examined it. The plaintiff was under no obligation to test it or make inspection of it. He had a right to rely upon inspection by the ground boss and shovelers, whose duty it was to inspect unless the danger was open and obvious to him. There is evidence that the danger was not obvious; that the mine was not well lighted; that each man carried a candle; and that, in order to discover the dangerous condition of rocks, it was often necessary to examine the cracks with the aid of a candle in order to discover signs of separation or settlement.

There was no duty on the part of the driller to inspect or examine, and, even if so, his negligence could not be attributed to the plaintiff. Section 2394--1, Stats. 1911. Neither Byke nor plaintiff had anything to do with clearing away the rock after the blasting and nothing to do with preparing the place where they drilled. They drilled where they were ordered to drill by the ground boss, Cushman. Plaintiff's duties were to do what he was ordered to do by the driller. He testified: “My duties were to assist the drillman. I was backer. That was to drill and break ground and put in shots. I was only assistant man. I helped set up the machine and keep the bolts tight and changed the steel and squirted the water in the hole that was drilled.”

Counsel for appellant argues that the evidence shows that the mine was well lighted. There is, however, conflict on this point. Byke, the driller, testified that the mine was dark; that every man carried a candle; no lights sticking around, no lamps, no electric lights; gob comes close to the pillar; you cannot see there. The witness further testified that you would have to put the candle up close to see the rock. There is ample evidence that the dangerous condition of the rock could only be discovered by holding a candle close to it in view of the poorly lighted condition of the mine. Coun...