Harvey v. Mountain Pride Gold Mining Co.

• Decision Date: 08 December 1902
• Parties: HARVEY v. MOUNTAIN PRIDE GOLD MIN. CO.
• Court: Colorado Court of Appeals

70 P. 1001

18 Colo.App. 234

HARVEY v. MOUNTAIN PRIDE GOLD MIN. CO.

Court of Appeals of Colorado

December 8, 1902

Appeal from district court, Summit county.

Action by Goldie C. Harvey against the Mountain Pride Gold Mining Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Belford & Belford (Herbert R. Belford, of counsel), for appellant.

H Riddell, for appellee.

GUNTER J.

Action by the surviving wife to recover damages for death of the husband through alleged negligence of defendant. Trial to the court. Judgment for defendant. Plaintiff appeals. The facts are undisputed. Defendant was operating a mine. Its workings were a tunnel 700 feet in length, and a shaft which connected with the tunnel at a depth in the shaft of 147 feet from the surface, and continued below the tunnel level 30 feet; thence downward on an incline to a depth below the tunnel level 350 feet. Over the mouth of the shaft was a building containing hoisting pumping, and other machinery commonly used in mining. The shaft was partitioned, on one side being the ladderway, and on the other the bucketway. Two small wooden buildings, used as bunkhouses, stood at the mouth of the tunnel, one on each side thereof; the space between them being roofed, and being the entrance to the tunnel. There were no special appliances for extinguishing fire, nor was there a bulkhead or other means specially designed for checking fires. Malcolm T. Harvey, the husband of appellant, was in the employ of defendant as a pumpman, and at the time of the accident was at work, with a fellow employé, Thomas Harvey, in the incline shaft, about 250 feet below the tunnel level. Through the negligence of a fellow employé, a fire started in the bunkhouse, and soon extended to the timbers of the tunnel. The draft carried the smoke through the tunnel and up the shaft. A fellow employé Williams, working in the shaft about 220 feet above deceased, informed the Harveys of the fire, and all attempted an escape. When Williams reached the tunnel level, he informed the Harveys, then some 30 feet below, that it was the bunkhouse on fire, and that he was going to escape by the ladder through the shaft. Thomas Harvey said to await the bucket (with intent to escape by the bucket through the shaft), and one of the Harveys rang the bell for that purpose. Williams escaped. The bucket was lowered as promptly as possible, but not in time to assist the Harveys. They were later found dead in the tunnel.

Plaintiff contends that defendant was negligent, that such negligence was the proximate cause of the death of her husband, and that such negligence consisted in the character and location of the bunkhouse, and in the absence of a bulkhead or other means of checking the fire. Defendant denies negligence, and further says that deceased had full knowledge of the conditions constituting the alleged negligence; that he was as capable of understanding them as defendant, the principal; that he made no complaint thereof, and continued to work, knowing such conditions, without any promise of a change therein from defendant, and thereby assumed the risk of the results of the alleged negligence of defendant.

Deceased 36 years of age, was of good intelligence, had worked around mines before his employment by defendant, and had worked as pumpman in above mine during one month next preceding the accident. He lodged in the bunkhouse; knew the materials of which it was constructed, its location, and its use. In going to and from his work, he traveled through the tunnel, knew its location with reference to the shaft, and must have known of the draft passing through, the tunnel and up the shaft. He also knew whether any appliances for checking the fire existed in and about the tunnel. The whole situation was as open to his observation as to that of the principal, and only common knowledge was required to understand it. It is not attempted to be...