Hone v. Mammoth Min. Co.

• Decision Date: 03 February 1904
• Docket Number: 1471
• Citation: 27 Utah 168,75 P. 381
• Court: Utah Supreme Court
• Parties: CHARLES HONE, Respondent, v. THE MAMMOTH MINING COMPANY, a Corporation, Appellant

75 P. 381

27 Utah 168

CHARLES HONE, Respondent, v. THE MAMMOTH MINING COMPANY, a Corporation, Appellant

No. 1471

Supreme Court of Utah

February 3, 1904

Appeal from the Fifth District Court, Juab County.--Hon. T Marioneaux, Judge.

Action to recover damages for personal injuries alleged to have been occasioned by the negligence of the defendant. From a judgment in favor of the plaintiff, the defendant appealed.

AFFIRMED.

Messrs Sutherland, Van Cott & Allison, S. R. Thurman, Esq., and Messrs. Hurd & Wedgwood for appellant.

Messrs Powers, Straup & Lippman for respondent.

BASKIN C. J., delivered the opinion of the court. BARTCH and McCARTY, JJ., concur.

OPINION

BASKIN, C. J.

STATEMENT OF FACTS.

This is an action to recover for personal injuries to plaintiff, alleged to have been caused by the negligence of the defendant while the plaintiff, as an employee of the defendant, was engaged as a miner in defendant's mine. The complaint in substance alleges that the defendant negligently failed to furnish plaintiff with a reasonably safe place in which to work, and negligently permitted the place where the plaintiff was by the defendant sent to work to become and remain unsafe; that the defendant, after it had been informed that the plaintiff was inexperienced as a miner, not having been previously engaged in the business of mining, and after it had become fully aware of the unsafe and dangerous condition of the place in which the plaintiff was by the defendant sent to work, negligently failed both to warn or inform plaintiff of the unsafe and dangerous condition of said place, and by timbering to make and keep the same reasonably safe; and that while the plaintiff was in the service of the defendant in said place and unaware, by reason of his inexperience, of the unsafe and dangerous condition of the same, owing to the alleged negligence of the defendant, a cave occurred, and caused the injury of which the plaintiff complains. The defendant, in the answer, denies the alleged negligence, and pleads the contributory negligence and assumed risk of the plaintiff. The jury returned a verdict in favor of the plaintiff, and judgment was entered thereon.

The appellant assigns as error the refusal of the court to grant a new trial. The first objection urged in the brief by appellant's counsel, is that "the evidence affirmatively shows that plaintiff was guilty of contributory negligence, without which the accident and injury would not have happened." It appears from the evidence that the plaintiff was inexperienced as a miner, and that the defendant was aware of the fact; that the plaintiff was injured about 1:30 o'clock a.m., on the 18th day of August; that he, with several other miners, was sent by the defendant's shift boss to work on the night shift in the "800" stope, and that they commenced to work about 12 o'clock p. m. on the 17th of August; that, for several days previous to the accident, rock had been shelling and dropping from the wall of the stope, and the timbers and track in the same had been settling, and that both the defendant's foreman and shift boss were aware of that fact.

The shift boss testified: "I first heard of the danger in the '800' stope right after supper time. The men came up about 10 o'clock. We used to have an hour for supper. I was on top. I was about coming back from supper, and I heard some of the boys talking, and went over to where they were. I heard them talking among themselves, saying that they thought the stope was settling. That was on the night of the 17th, about 10:30. I went over to a man named Joe Tilly. I asked him about it. He said he thought she was settling a little. 'Well,' said I, 'you go right down and look after it, Joe, ' and I says, 'if there is any danger, for God's sake get the men out of there,' and he says, 'All right.' It must have been possibly 10:30, somewhere along there, when I had anything of apprehension of anything unusual in the stope. At 10:30 the boys were at supper, and they were talking that the stope was settling. At that time I went to Joe Tilly and asked him about it, and he told me that it was settling a little. After that, at 12 o'clock, I sent laborers down, and among the laborers was Hone. I says to Tilly, 'Just stay there and watch it, and, if you think anything is dangerous, get the men out.'"

The shift boss failed to inform the plaintiff, or any of the other employees so sent down, of the threatened danger. It further appears from the evidence that, after the men so sent down began to work (but how long after does not appear), they were warned of the approaching cave by the falling of a large rock, and the increased dropping of loose material in the "800" stope, and, after about twenty minutes occupied in removing their tools and the car on the track beneath the stope, they assembled at a place in a drift 1,200 feet long leading from the stope to the main working shaft, about thirty feet from the stope, and while they were standing there the stope caved, and the current of wind in the drift caused by the cave drove the car, taken from beneath the stope, upon the plaintiff, and injured him. The evidence is indefinite and conflicting as to the time which elapsed between their assemblage at said place and the occurrence of the cave. It is, however, clear that sufficient time elapsed to enable them to retreat to the mule drift, which runs at a right angle from the drift in which they so assembled, and is situated 100 feet from the main working shaft, and also to a large room in said drift 600 feet from the stope, and a crosscut sixty feet from said stope. The drift leading from the stope to the shaft was winding. Among the employees of the defendant so assembled there were three or four experienced miners.

The plaintiff testified that he did not know how high the stope was; that he believed the place to which the employees retreated was safe; that he asked the miners if it was safe, and they said there would not be much concussion, and, if there was, if we would go out near the shaft we would go down it, and that it was as safe there as anywhere; that he did not know any better, and believed them; that they were experienced men, and that he listened to them and judged they knew more about it than he did; and that, when he saw so old and experienced miners there taking it easy, he thought it was safe there.

Gilbert Losee, a witness for the plaintiff, who was present, testified that "the miners did not seem to be excited at all; they said the concussion would not hurt us at all; there were too many outlets; that the concussion would not be enough to throw us down, and that if it was, and we were out to the shaft, it would blow us down it." This witness further stated that there were air passages down to the 900 level, up to the 700 level, and through to the Grand Central Mine.

J. W Reed, a miner who had worked in the mine a year and nine months, and who was present at the accident, testified as follows: ". . . Some of the boys went back in the stope and got the cars out that was standing empty, and we got back in the drift where we knew the ground would not fall, and talked about the cave. We thought there was so much way for the air to get around that the concussion would not hurt us and we were safe there, and waited till the boss came down to see where he would send us to work. When we were talking about the concussion, Hone was in the crowd. We were all together. It was a general discussion. . . . Among the miners the discussion in the presence of Hone was that the ground where he had got to was safe, and there was nothing to fear, only the concussion, and that had lots of room to escape. I presume we did not think the stope would come in as soon as it did. We did not expect it to cave before morning, maybe not until the next day, because the timbers generally take time to break, and the concussion of air so they will give less. My experience...