Hollingsworth v. Davis-Daly Estates Copper Co.

• Decision Date: 18 January 1909
• Citation: 99 P. 142,38 Mont. 143
• Parties: HOLLINGSWORTH et al. v. DAVIS-DALY ESTATES COPPER CO. et al.
• Court: Montana Supreme Court

99 P. 142

38 Mont. 143

HOLLINGSWORTH et al. v. DAVIS-DALY ESTATES COPPER CO. et al.

Supreme Court of Montana

January 18, 1909

Appeal from District Court, Silver Bow County; Jeremia J. Lynch Judge.

Action by Mamie J. Hollingsworth and others against Davis-Daly Estates Copper Company and others. There was a judgment against the company and in favor of the other defendants, and from the judgment and an order denying a new trial, the company appeals. Affirmed.

Charles R. Leonard and Clayberg & Horsky, for appellant.

Maury & Templeman, for respondents.

SMITH J.

This action was brought by the heirs of William Hollingsworth Sr., against the Davis-Daly Estates Copper Company and others to recover damages for the death of William Hollingsworth Sr., claimed to have been caused by the negligence of the defendants.

It is alleged in the complaint that the appellant company was operating the Silver King mine, in Butte, and that Hollingsworth had been in its employ as a stationary engineer for four or five days prior to October 3, 1906. The allegation of negligence is as follows: "That it was the duty of the defendants, masters of William Hollingsworth, Sr., to use reasonable and ordinary care to the end that the place where they had William Hollingsworth, Sr., working for them, and places where they invited him during his work for them, be reasonably safe and free from danger. That the defendants, a few days before the 3d day of October, A. D. 1906, had, on the surface of the said Silver King mine, for the use of the men working for them (of which William Hollingsworth, Sr., was one), erected a toilet house, where with decency the calls of nature were answered, and said William Hollingsworth, Sr., was tacitly by the defendants invited to use the same and go from his work at defendant's engine to said toilet room when needful. That the defendants, failing and neglecting their duty as set out *** herein, negligently permitted the direct way from said engine to said toilet room to become, and the same was, on October 3 and 4, A. D. 1906, unsafe and dangerous in these respects, to wit: In the said way, and under the same, there was an old, abandoned, insufficiently timbered, empty shaft, 60 or more feet deep, known for many weeks by defendants to be there. The defendants about a month before the 3d day of October, A. D. 1906, and about three weeks before William Hollingsworth, Sr., came to work there, had negligently timbered this shaft for only two sets (about ten feet) below the surface, and had negligently failed to fill, or timber in, or in any wise support the walls of said shaft below the depth of ten feet from surface, and, the said shaft being in surrounding loose dirt and decomposed granite, the ground for three or four feet on every side of said timbers was negligently by defendants left loose, unstable, and of inadequate cohesiveness to sustain the weight of an ordinary man when walking over the same. Furthermore, the defendants had negligently put good boards, firmly nailed across the said two sets of timbers, sufficient to sustain an ordinary man, and thereby invited William Hollingsworth, Sr., and other servants, to go over the said boards and confide in the strength of the earth around the same. The defendants had negligently done all of the things in this paragraph mentioned, before William Hollingsworth, Sr., came to work for them, and had negligently permitted the said way to remain in this unsafe and dangerous condition until the death of William Hollingsworth, Sr., as hereinafter set forth. That about 11 or 12 o'clock of the night of October 3 or 4, A. D. 1906, the said William Hollingsworth, Sr., going between the said toilet room and defendant's said engine, using ordinary care on his part, invited by defendant's covering over the said shaft to walk over the same, was approaching said shaft and within a foot or two of the edge of same, when the earth under him, around said timbering, caved in, and thereby, through the negligence of defendants in thus leaving the said ground insecure, said William Hollingsworth, Sr., was thrown to the bottom of said shaft and killed by the defendants."

The appellant company by its answer denied each of these allegations, and alleged, as affirmative defenses: That Hollingsworth had full knowledge of the condition of the shaft and of its dangerous character. That appellant had, prior to the 3d day of October, 1906 (the date of the death of Hollingsworth), used reasonable care in the repair of the shaft and had placed it in a reasonably safe condition. That it had no notice or knowledge that the shaft had become out of repair or dangerous, until the 4th day of October, 1906. That, if the shaft became dangerous or defective on the evening of the 3d day of October, 1906, the same was unknown to appellant. That Hollingsworth had full knowledge of the condition of the shaft and the fact that it had become dangerous on the evening of October 3, 1906, and prior to the alleged accident, and told various men working with him for appellant of its condition and advised them to notify appellant thereof immediately on the morning of October 4, 1906, and that, with full knowledge of the dangerous condition of the shaft, Hollingsworth voluntarily continued his work as engineer without any objection, and thereby assumed all risk. That it was not necessary for Hollingsworth to approach the shaft in the performance of his duties as engineer. That he assumed all risk of danger and accident when he approached the same; that, if he approached said shaft, it was upon his own suggestion and for his own individual purposes, with full knowledge of its dangerous condition, and without any instruction from appellant or necessity in the performance of his duties; that Hollingsworth was killed because of his own contributory negligence. By replication plaintiffs denied all allegations of the assumption of risk and contributory negligence.

Upon the issues thus presented, a trial was had in the district court of Silver Bow county, which resulted in a judgment in favor of the plaintiff and against appellant company and judgments in favor of the other defendants. The appellant company made a motion for a new trial, which was overruled, and it now appeals from the judgment and the order overruling its motion for a new trial.

Upon the trial plaintiffs introduced evidence tending to show: That on October 3, 1906, Hollingsworth, Sr., was employed by the appellant as a stationary engineer in the company's engine room at the Silver King mine; that appellant had erected a toilet house near said engine room for the use of its employes; that under the way to this toilet house, and about 20 feet from the engine room, existed a shaft about 100 feet deep; that, prior to Hollingsworth's going to work for appellant, defendant had retimbered the upper part of the shaft, covering it with boards and dirt; that on the evening of October 3, 1906, at about 19 minutes to 11 o'clock, Hollingsworth left the engine room, saying that he was going to the toilet; that the next time Hollingsworth was seen he was discovered dead at the bottom of the shaft ; that the shaft had caved from the surface all around the collar, and the timbers below the collar set had fallen into the shaft. Plaintiffs' witnesses Murphy and Hoadley testified that there were no timbers in this old shaft, except for the upper ten feet; but witness Sutton testified that the shaft had been timbered from the bottom since 1898; that he went down this shaft in 1905, and then covered it up and considered it safe. Plaintiffs also introduced evidence, over appellant's objection, that some few days prior to the 3d day of October, 1906, appellant had caused the exhaust pipe from its engine to be turned into this old shaft, and that steam condensing therein had a tendency to swell the timber and render the ground soft. At the close of plaintiff's testimony, appellant moved for a nonsuit, which motion was overruled. Appellant then introduced evidence tending to show: That the old shaft was not covered when it took possession of the property, but that it at once covered the same with planks; that some time prior to October 3, 1906, appellant's foreman went down the shaft and found it in a safe condition, except as to the first set of timbers; that he made a thorough examination and then bulk headed the upper part of the shaft with timbers 8"'x8"'; that he put in one new set and timbered it solid, covering it with two-inch plank. This witness testified that where, in the two top sets, the old timbers were decayed, they were replaced with new timbers; that before the shaft was closed up it was put in good condition; that when the witness went down the shaft it was for the purpose of seeing if it was safe; that the foreman inspected the shaft about 4 o'clock p. m. of October 3, 1906, and found everything was all right.

The learned counsel for the appellant state in their brief that there are three important questions involved in the appeal, as follows, as they claim: (1) The complaint does not state facts sufficient to constitute a cause of action; (2) the record contains no evidence of the negligence alleged in the complaint; (3) the record discloses no evidence that Hollingsworth's death was the proximate result of any negligent or other act of appellant. We shall examine the questions in the foregoing order.

1. It is contended that there is no allegation in the complaint that the defendant had knowledge of the dangerous condition of the shaft. The allegation is that the shaft was old, abandoned, and insufficiently timbered. The natural deduction from this allegation is that the shaft was no longer used for the purposes for which it was constructed. It is further alleged...