Golesh v. Utah Apex Mining Co.

• Decision Date: 30 December 1916
• Docket Number: 2922
• Citation: 162 P. 369,49 Utah 232
• Court: Utah Supreme Court
• Parties: GOLESH v. UTAH APEX MINING CO

162 P. 369

49 Utah 232

GOLESH v. UTAH APEX MINING CO

No. 2922

Supreme Court of Utah

December 30, 1916

Appeal from District Court, Third District; Hon. F. C. Loofbourow Judge.

Action by Eli Golesh against the Utah Apex Mining Company, a corporation. From a judgment sustaining defendant's motion for nonsuit and dismissing the complaint, plaintiff appeals.

AFFIRMED.

Willard Hanson and Thomas Marioneaux for appellant.

King &amp Nibley and P. T. Farnsworth, Jr., for respondent.

FRICK J. McCARTY, J., STRAUP, C. J., concurring.

OPINION

FRICK, J.

The plaintiff commenced this action against the defendant, a mining corporation, to recover damages for injuries which it is alleged the plaintiff sustained while working in defendant's mine. The material facts, briefly stated, are as follows:

On the 14th day of May, 1914, the plaintiff was in the employ of the defendant as timberman in its mine. It is conceded that the plaintiff at the time was a competent and experienced timberman, machineman and miner. Indeed, the plaintiff testified in his own behalf as an expert machineman, quartz miner and timberman. On the date aforesaid the plaintiff, by the shift boss of the defendant, one Kelly, was directed to assist one Snarich, who, it is also conceded, was an experienced machineman, quartz miner and timberman, and who also testified as an expert in the case, and who, plaintiff said, was his "partner" at the time of the accident, to put up some timbers in a certain stope in order to make the place safe for those who were required to work in said stope and to pass through it and to go to and from the face thereof. Two Sullivan or Ingersol drills were kept at work in the face of the stope breaking down ore and muck. On the morning of the accident Snarich was by Kelly directed to go to work near the face of the stope to put in some timbers. Snarich went to the place directed and shoveled away the muck so as to permit the placing of what are called square sets of timbers. The square sets in question were composed of four sawed upright timbers eight by eight inches square and about five feet in height or length. At the place in question, however, the roof of the stope being between six and seven feet high, shorter timbers, eighteen inches or two feet in length, were first put in place upon which the square sets were afterwards placed. A square set covers a space of area of five feet five inches square. Snarich commenced work about eight o'clock in the morning, at which time he says he carefully examined and sounded the roof of the stope at and near where the timbering was to be done for the purpose of discovering whether there was any loose material adhering to roof of the stope, and to remove it if there was any such. He says that after examining the roof of the stope carefully he found it sound and safe. He then commenced to prepare the ground for the purpose of placing the square sets. About eleven o'clock in the forenoon, or perhaps a little sooner, plaintiff also came to the stope as requested by Mr. Kelly to assist Snarich in putting up the square sets, and they both continued to work there until noon, when they stopped a half hour for lunch, and thereafter continued to work until about two o'clock, at which time they had the square sets nearly completed. While they were about to wedge the square sets to the roof of the stope a considerable quantity of material fell from the roof above the square set and injured the plaintiff by breaking his leg about two inches below the knee. The plaintiff testified that when he went into the stope to commence work he found his partner, Snarich, working there; that plaintiff asked Snarich whether he had examined the roof of the stope and whether it was all right and sound, and whether he had "picked it down"; that Snarich informed him that he (Snarich) had examined it and "sounded it," and that "everything was all right"; that he (plaintiff) "believed and relied" on what Snarich had told him, and did not examine the roof of the stope himself, although he admitted that it was the duty of every timberman when he went to work to put up timbers to carefully examine the roof of the stope or place where timbers were to be placed, and that the timbers in this instance were put in to make the roof of the stope safe; that the stope in question was about thirty-five feet wide and of considerable length. He also said, "It (the roof of the stope) looked all right to me," and that it continued to look all right during all of the time he worked up to the time of the accident. The testimony of Snarich is to the same effect. He, in testifying to what occurred between him and the plaintiff when the latter came to work, said:

"Eli (plaintiff) came to me and said: 'Hello, John, how is your place?' I say, 'It is all right.' 'Have you everything down?' I say: 'Sure, it is all right now; it is a good place to work.'"

All this time the drilling machines were being operated by two machinemen to each machine, and were kept at work in the face of the stope some distance from where plaintiff and Snarich worked. The machines were being operated by compressed air, and their operation, both plaintiff and Snarich testified, caused the earth surrounding the machines for a considerable distance to vibrate or "shake," as they called it. Soon after the plaintiff had commenced to work with Snarich Mr. Kelly, the shift boss, also came into the stope. The plaintiff testified that he requested Kelly to stop the machines until the timbers were put in place. Upon that subject the plaintiff testified:

"I said to him (Kelly), 'It will be a good thing to stop this machine for a while so we can throw this timber in and put it in shape as quick as we can and that helps a good deal.' * * * He said: 'We can't stop the machine. Men have to go on the same time that you are working, and they cannot do that that way. The machinemen can't make no time at all. It will be to the quitting time, and the machines has got to keep going to make muck for the night shift.' He then say: 'This is pretty good. John (Snarich) has been working all morning and picking it down, and it is in good shape now, and don't be afraid.'"

The plaintiff also says that he relied on what Mr. Kelly said about the place being "all right." Snarich, in referring to what was said by Mr. Kelly to the plaintiff, testified:

"Mr. Kelly go to that place. Eli (plaintiff) was there, too, and me, and Eli says to Frank (Kelly): 'Frank, will it be all right to stop that machine while we are working in the open place?' And Frank says: 'She is all right. John (Snarich) was here all morning, and everything was picked down. Don't be scared. You keep going.'"

Plaintiff and Snarich then kept at work as before stated. The plaintiff, when asked what was usually done if a timberman asked that the machines be stopped, said:

"If a man is scared, he asks them to shut (stop) the machine. If he isn't scared, he don't ask them."

He, in speaking of himself, testified:

"I was scared something from above would fall."

That is, he feared that, if the machines were kept going, the vibration incident to their operation might cause material to fall from the roof of the stope. He, however, kept at work after what was said by Snarich and Kelly, and at no time made any examination of the roof of the stope, and paid no attention to it, except to look at it from time to time, when he says it "looked all right to me." Plaintiff, while testifying as an expert miner and machineman, also said that the vibration of the drilling machines caused the material to fall upon him and injure him. Mr. Snarich and two other witnesses, testifying as experts, said that the vibration of the machines might have caused the material to fall from the roof of the stope.

Upon substantially the foregoing evidence respecting the manner and cause of the accident the defendant moved for a nonsuit upon the grounds: (1) That plaintiff had failed to prove any negligence on the part of the defendant; (2) that the evidence showed that the plaintiff was guilty of contributory negligence as a matter of law; and (3) that the plaintiff had assumed the risk. The court sustained the motion and dismissed the complaint. Plaintiff appeals.

Both parties have devoted most of their arguments and citation of authorities to the latter proposition. The defendant however, also contends that no actionable negligence on its part was proved. Assuming without deciding that there was sufficient evidence to go to the jury upon the question of defendant's negligence, yet the serious question that must be answered is whether or not, under the facts and circumstances disclosed by the evidence, plaintiff did or did not assume the risk of injury as matter of law. Plaintiff's counsel contend that plaintiff did not, while defendant's counsel vigorously insist that he did. His counsel insists that plaintiff did not assume the risk, for the reason that Mr. Kelly, who represented the defendant, gave assurances of safety upon which, under all the circumstances disclosed by the evidence, the plaintiff had a right to rely, and thus continue the work of putting in the timbers. Counsel have cited and relied upon the following cases in support of their contention: Nugent v. Cudahy Pkg. Co., 126 Iowa 517, 102 N.W. 442; Chicago, etc., Co. v. Sobkowiak, 148 Ill. 573, 36 N.E. 572; Schmit v. Gillen, 41 A.D. 302, 58 N.Y.S. 458; Haas v. Balch, 56 F. 984, 6 C. C. A. 201; Harder, etc., Co. v. Schmidt, 104 F. 282, 43 C. C. A. 532; Consolidated, etc., Co. v. Shepherd, 220 Ill. 123, 77 N.E. 133; McKee v. Tourtellotte, 167 Mass. 69, 44 N.E. 1071, 48 L. R. A. 542; Beseloff v. Strandberg, 62 Wash. 36, 113 P. 250; Faulkner v. Mammoth M. Co., 23 Utah 437, 66 P. 799; Frank v....