Gregoric v. Percy-La Salle Mining & Power Co.

• Decision Date: 01 April 1912
• Citation: 122 P. 785,52 Colo. 495
• Parties: GREGORIC v. PERCY-LA SALLE MINING & POWER CO.
• Court: Colorado Supreme Court

122 P. 785

52 Colo. 495

GREGORIC v. PERCY-LA SALLE MINING & POWER CO.

Supreme Court of Colorado

April 1, 1912

Appeal from District Court, Pueblo County; C. E. Essex, Judge.

Action by Marija Gregoric against the Percy-La Salle Mining & Power Company. From judgment for defendant, plaintiff appeals. Reversed and remanded.

M. J. Galligan, of Pueblo, for appellant.

William E. Hutton, of Denver (Bruce B. McCay, of Denver, of counsel) for appellee.

GABBERT J.

Plaintiff in error brought suit to recover damages sustained on account of the death of her husband claimed to have been caused by the negligence of the defendant. At the conclusion of the evidence on the part of plaintiff, the court directed a verdict in favor of defendant. The motion for such verdict was sustained by the court for the reasons that the deceased had voluntarily gone into a place of danger, had assumed the risk of the injury which resulted in his death, and was guilty of contributory negligence. Plaintiff brings the case here for review.

The evidence, in substance, was that deceased was employed by the defendant company in the eleventh level of the mine it was operating at a point designated as 'No. 3 Raise.' In order to reach this point, it was necessary to pass through a stope. This stope was unusually wide, and semicircular in shape. It was built or filled up with square sets placed on top of and against each other. Over these sets, planks had been laid practically along the center of the stope its entire length. The planking was of considerable width, but did not entirely cover the sets. There was also a track through this stope from the raise where deceased was employed to what is designated the 'Percy incline.' For most of the distance the planking was on both sides of the track. Between the rails of the track was an open ore chute some 25 or 30 feet in depth. The remainder of the space between the rails was planked. The chute was unprotected, nor was any light or other signal displayed to warn employés of its existence. It had been in this condition for about three months. The stope was dark, being only lighted by candles carried by employés. The day deceased was injured, which resulted in his death, was the first time he had ever been employed in the raise or had passed through the stope in question. The track at one place made a sharp turn. In going to his work deceased went in with other employés entering the stope from the Percy incline. One of these employés was in advance. The chute was between the turn in the track and the raise. In going in, the employés with deceased followed the track to near the point where the turn referred to exists, and then left it, walking on the boards which had been laid over the square sets to a point on the track beyond the ore chute which they followed to the raise. It does not appear that deceased knew of the existence of the chute or that he had been told that it was within the track. About three hours later he left the place where he was at work, carrying a lighted candle, and following the track stepped into the chute, and received injuries which resulted in his death. A candle lights but a comparatively small space. The purpose for which he left his place of work and followed down the track is not definitely disclosed. It appears that drinking water was kept at a place in the mine which employés could attain by following the track. This place was beyond the ore chute. It also appears that in order to reach the toilet room the same course had to be taken.

An employer is required to use ordinary care in providing a reasonably safe place for his employés to work in. Carleton M. & M. Co. v. Ryan, 29 Colo. 401, 68 P. 279; Burnside v. Peterson, 43 Colo. 382, 96 P. 256, 17 L.R.A. (N S.) 76; Roche v. D. & R. G. R. R. Co., 19 Colo.App. 204, 73 P. 880. This rule extends to ways of ingress and egress through which the employé must pass in going to and from his work, or to where water is provided for drinking purposes, or to a place provided for an employé to relieve his physical necessities. 2 Dresser's Employers' Liability, § 103; Va. Bridge & Iron Co. v. Jordan, 143 Ala. 603, 42 So. 73, 5 Ann.Cas. 709. See, also, authorities cited in note, 712; White on Personal Injuries, § 44; Strobel v. Gerst Bros. Mfg. Co., 148 Mo.App. 22, 127 S.W. 421; White on Mines and Mining Rem. § 395.

Applying this rule, it is apparent that the court, on the testimony to which we have referred, erred in directing a verdict in favor of the defendant, for the reason that it was at least sufficient for the jury to consider under appropriate instructions whether negligence of the defendant was the proximate cause of the injury suffered by the deceased. The stope was the means of ingress and egress which the defendant provided for the use of its employés in going to and from their work, and also for the other purposes to which we have referred.

The ore chute was not guarded, neither was any signal displayed which would warn an employé of its existence. It does not appear that deceased knew of its existence. He had never been in the stope before. He was carrying a lighted candle at the time of his injury, which was the usual means for...