Finalyson v. Utica Mining & Milling Co.

• Decision Date: 28 March 1895
• Docket Number: 474.
• Citation: 67 F. 507
• Parties: FINALYSON v. UTICA MINING & MILLING CO.
• Court: U.S. Court of Appeals — Eighth Circuit

67 F. 507

FINALYSON v. UTICA MINING & MILLING CO.

No. 474.

United States Court of Appeals, Eighth Circuit.

March 28, 1895

The employee set to work to make a dangerous place safe assumes the risk of accident happening before that result is accomplished. Instance, stating facts, the scale falling before timbers set.

On March 28, 1893, Daniel Finalyson, who was in the employment of the Utica Mining & Milling Company, a corporation, the defendant in error in this case, was so injured by the fall of a mass of sticky mud and other material weighing about 1,200 pounds, which composed a portion of a vein in the Utica mine and is called gouge, that he died. Mary Finalyson, the plaintiff in error, is the widow of Daniel, and she brought this action under the statutes of Colorado to recover damages for the alleged negligence of the company that she averred caused this death. The negligence she alleges in her petition is that the entry in the mine where Finalyson was at work was imperfectly constructed, unsafe, and defectively timbered that it was the duty of the company to prepare a safely-timbered place, and to keep and maintain the entry in good repair and order, or the timbers thereof in such good repair and quantity as to protect the lives of Finalyson and his co-laborers, but that the company conducted itself so negligently in the procurement and erection of timbers to be used in said mine, and in the preparation of places where the miners were compelled to work, as to leave the place where Finalyson was to work in an unfit and dangerous condition that the company knew of this condition, and that this negligence caused the injury. The allegations were denied by the answer.

The evidence disclosed the following facts: A level called the 400-foot level had been driven in this mine, and the miners were stoping the ore from the roof of this level. Holes were drilled and charged with explosives, which were fired, and in that way the ore bodies were shot down and fell into the level below, or upon a staging built over it. The original roof of this level was about seven feet above its floor, and when the miners had shot down the material as high as they could conveniently work from the level itself and the material that accumulated in it, they constructed of timbers a staging or second floor, about six feet above the bottom of the level, so that the men could work in the drift below this floor while those above it were stoping down the ore higher up in the vein. After ore bodies had been removed to a considerable height, the workmen erected at convenient distances upright posts at each end of a mudsill, which was laid across the floor of the level, placed a cap upon these posts, and then laid a flooring of light sticks of timber from cap to cap. The miners then worked in the drift below this flooring removing the material that had accumulated there, and passing to and fro, while those above it were taking out the ore bodies from the vein above. This timbering had been completed along this level to within 25 feet of the place of the accident. From this point to a place within 8 feet of the place of the accident, stulls or heavy timbers, the ends of which rested in notches cut in the respective walls of the vein, had been placed across this level, and upon these the light sticks of timber had been placed to make the necessary flooring. Up to this point, 8 feet distant from the place of the accident, the ore bodies in the vein had been taken down to a height varying from 20 to 65 feet from the floor of the level. In this space of 8 feet the workmen were engaged in shooting down the ore from the original roof of the level, and putting in the timbering, working forward along this roof as fast as the ore bodies were removed to a height beyond their reach. Within this 8 feet the level below had become filled with materials that had fallen from above to a height of 6 feet, so that the workmen could stand upon this material to take out the ore bodies along the roof. One Reed was the superintendent of the company, and one Talbert was the underground foreman, who hired and discharged men, and told them when and where to work and what to do. In the forenoon of the day of the accident one Austin, a fellow servant of Finlayson, put a blast into the breast of this stoping just above the original roof of the level, and shot down a body of material. When he returned after dinner, he discovered for the first time that this blast had opened up on the foot wall of the vein, just where the roof had been, a mass of gouge of 3 feet long, 2 feet wide, and 18 inches thick. This mass had not been visible until after the morning blast had been fired. Austin took his pick, and worked at it for nearly an hour but could not get it down, and was about to get his drills and hammer to shoot it down, when the foreman Talbert came along, and Austin told him that this was a treacherous looking chunk. Talbert said: 'You can get that down.' Austin said he could not. Talbert then took a pick, and tried to get it down himself, but he could not. He then remarked: 'There is lots of time; if we shoot that, we lose the smelting ore that is alongside of it. ' Thereupon both men went to work picking up and sacking the ore. They worked so close to this mass of gouge that if it fell it must inevitably fall upon their bodies, unless they fortunately jumped from under it, but Austin testified that he was not satisfied, and thought it might fall at any time. Finalyson had been at work in this mine for two years. He was employed in any work required to be done in the mine, but generally worked at timbering because he was more apt than others at that work. About 20 minutes after Austin and Talbert had tried to get this gouge down, Finalyson came along, asked Talbert where he should cut the hitch or notch for the next stull so as to have it on a level with those already in place, and Talbert pointed to a place on the foot wall a little lower than, and a little to one side of, this gouge,-- a place that was neither in nor under it. Finalyson then cleared away a place, and sat down with his back and shoulders against this chunk, and commenced to drill in the foot wall a place for the notch. After he had drilled away in this wall for half an hour the mass of gouge fell upon and injured him. Upon this state of facts the court below held that there was no evidence of negligence on the part of the company, directed a verdict in its favor, and entered judgment accordingly. This ruling is the error assigned.

H. B. Johnson, for plaintiff in error.

Willard Teller, Harper M. Orahood, and Edward B. Morgan, for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge, after stating the facts, .

In granting the motion of the mining company to direct a verdict in its favor, Judge Hallett, who tried this case in the court below, declared that it was immaterial in his opinion whether the foreman was or was not a vice principal of the company, and that if he had been its president there would have been no evidence of negligence in this case that would warrant a verdict against the company. We have been forced to the conclusion that this ruling was right on two grounds: (1) Because the ordinary rule of 'safe place' cannot be justly applied to this case; and (2) because there is no evidence in the case that would warrant a verdict that the company or the foreman was guilty of actionable negligence.

It is the general rule that it is the duty of the master to exercise ordinary care to provide a reasonably safe place in which the servant may perform his service. Railway Co. v. Jarvi, 53 F. 65, 3 C.C.A. 433, 10 U.S.App. 439. But this rule cannot be justly applied to cases in which the very work the servants are employed to do consists in making a dangerous place safe, or in constantly changing the character of the place for safety as the work progresses. The duty of the master does not extend to keeping such a place safe at every moment of time as the work progresses. The servant assumes the ordinary risks and dangers of his employment that are known to him, and those that might be known to him by the exercise of ordinary care and foresight. When he engaged in the work of making a place that is known to be dangerous, safe, or in a work that in its progress necessarily changes the character for safety of the place in which it is performed as the work progresses, the hazard of the dangerous place and the increased hazard of the place made dangerous by the work are the ordinary and known dangers of such a place, and by his acceptance of the employment the servant necessarily assumes them. Armour v. Hahn, 111 U.S. 313, 318, 4 Sup.Ct. 433; City of Minneapolis v. Lundin, 58 F. 525, 529, 7 C.C.A. 344, 19 U.S.App. 245; Railway Co. v. Jackson, 12 C.C.A. 507, 65 F. 48. In Armour v. Hahn, supra, the foreman of the carpenters at work upon a building in process of erection directed two of them to push a joist out to the end of timbers which rested upon and projected 16 inches beyond the wall of the building. One of the carpenters in obeying this order stepped on the projecting part of one of the timbers, which tipped up, and he fell, and was injured. Mr. Justice Gray, in delivering the opinion of the supreme court, said:

'There is no evidence tending to prove any negligence on the part of the firm of which the defendant was a member, or of their superintendent, or of the foreman of the gang of carpenters. The obligation of a master to provide reasonably safe places and structures for his servants to work upon does not impose upon him the duty, as towards them, of keeping a building, which they are employed in erecting, in a safe condition at every moment of their work, so far

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