Friel v. Kimberly-Montana Gold Min. Co.

• Decision Date: 19 March 1906
• Citation: 85 P. 734,34 Mont. 54
• Parties: FRIEL v. KIMBERLY-MONTANA GOLD MINING CO.
• Court: Montana Supreme Court

85 P. 734

34 Mont. 54

FRIEL v. KIMBERLY-MONTANA GOLD MINING CO.

Supreme Court of Montana

March 19, 1906

Appeal from District Court, Gallatin County; W. R. C. Stewart Judge.

Action by Mack Friel against the Kimberly-Montana Gold Mining Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

T. J Walsh, W. S. Hartman, A. P. Stark, and Chas. Klotz, for appellant.

Wm Wallace, Jr., and Chas. Donnelly, for respondent.

MILBURN J.

This is an appeal from an order granting a new trial; a motion for nonsuit having been made and granted. Plaintiff sustained personal injuries on August 21, 1903, while employed in the quartz mine of defendant, and the action was brought to recover damages. The evidence for the plaintiff, which, for present purposes, must be taken as true, shows that plaintiff was employed by the defendant about August 4, 1903, and worked until the time he was injured. On August 20th, the day before he was hurt, the plaintiff, an experienced miner, had worked on the top or fourth floor of the mine at his regular business as miner. On the morning of the day of the accident he was directed by the shift boss to go with another to the third floor and help the shovelers. He had never before been directed to shovel, and he had never before shoveled on the floor below where he had mined. He obeyed the order, and with three others commenced to shovel on the said floor. While thus at work, the floor upon which he was standing was 16 feet below the roof or "back" of the fourth floor, from which roof the rock fell which injured him. Above his head the roof of the third floor, which constituted the floor of the fourth floor, shut out from his view, and from the view of the men working with him, all the conditions obtaining upon the floor above. He did not at any time on the day on which he was injured go to the floor above, and no one of the men with him went there. The rock fell because there was no lagging under it to support it. The timbers were up and the cross-timbers in place, but the lagging had not been put upon them. This had been the condition since the afternoon before. In the meantime another shift had worked, and the breast of the stope had been carried far enough to allow one or more sets of timbers to be put in. The unlagged timbers, in the usual course of mining should have been lagged. No one had been set to work on the fourth floor under the unlagged place on the morning of the injury, and there was no one there at the time of the accident. A mass of rock fell from the unsupported roof of the fourth floor crashing through the timbers and lagging of the roof of the third floor above plaintiff's head and struck him, causing the injuries of which he complains. The plaintiff contends that the defendant did not, as in duty bound, use reasonable care, or any care, to furnish a safe place in which he should work. Defendant charges contributory negligence and argues that the spot from which the rock fell was not a "place," but a place in course of construction, and that the plaintiff was engaged in co-operation with the miners who were overhead in the construction of said place, and therefore assumed all of the risk incident to the making thereof. The testimony tends to show, and for the purposes of the motion did show, that it was the custom as well as the duty of the master to follow closely behind the miners working at the breast and to timber the floor and lag the same in order to protect all parties working in the vicinity. If, as the evidence also tends to show, the part of the stope from which the rock fell was one in which the mining had been completed, it was the duty of the defendant to timber and lag the same in order that that part of the place, already created, might be kept safe. If the plaintiff had been injured while in the actual work of making a place-and the evidence tends to show that he was not-then he could not recover from the company, for he would assume the obvious risks of his occupation. But he did not assume the risk following defendant's failure to exercise reasonable care to keep that part of the place already created safe and secure, if it did...