Hotchkiss Mt. Mining & Reduction Co. v. Bruner

• Citation: 94 P. 331,42 Colo. 305
• Parties: HOTCHKISS MT. MINING & REDUCTION CO. v. BRUNER.
• Decision Date: 02 March 1908
• Court: Supreme Court of Colorado

94 P. 331

42 Colo. 305

HOTCHKISS MT. MINING & REDUCTION CO. v. BRUNER.

Supreme Court of Colorado

March 2, 1908

Appeal from District Court, Hinsdale County; Theron Stevens, Judge.

Action by Rosa L. Bruner against the Hotchkiss Mt. Mining &amp Reduction Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Ralph Hartzell and William E. Hutton, for appellant.

Albert L. Moses and Richardson & Hawkins, for appellee.

BAILEY J.

The appellant operated a certain mining property known as the 'Black Crook,' located in Hinsdale county. At the time of the accident which gave rise to this action the Black Crook property was being worked through an upraise extending from the Fleece tunnel. The upraise had been driven about 300 feet, and ladders ran from the tunnel level to the top of the upraise; the first ladder starting on the tunnel level being a short one--8 or 10 feet long. This led to a landing, and from this landing longer ladders led to the top of the upraise. This upraise was divided into two compartments by a partition. The left-hand compartment was a dirt chute, and the right-hand one was the bucket and ladder way. In order to reach the breast of the upraise it was necessary to ascend the ladders in the ladder way. About 6 o'clock on the night of October 21, 1902, Arthur Bruner and his brother, Edward Bruner, commenced working for the appellant in this Black Crook mine. They ascended the ladder way to the place designated for their employment. This was the first time that either of them had ever entered this mine. At the close of the shift which they were working, they descended the ladder way, Edward going first, and Arthur following so closely that his brother cautioned him from time to time to avoid stepping upon his fingers. Just as Edward had reached the lower ladder extending from the tunnel to the platform, his brother being but a few feet above him, rocks were heard falling down the upraise. Arthur immediately called to his brother to 'look out for rocks.' Edward then jumped to the ground and called to Arthur asking if he were hurt. Receiving no answer he reascended to the top of the platform, and there found Arthur lying dead, with his feet at the foot of the lader. His head had been crushed. The evidence further discloses that this upraise had been driven through soft, veinous matter which, because of the action of the water upon it, frequently sloughed off and fell down the waterway, the masses of rock falling varying from 10 to 100 pounds in weight. Shortly before the accident involved in this action, other employés had been injured by falling rock in this manway. The night before the accident one of the co-employés of the Bruners observed rock falling down the manway. The evidence tended to show that the falling of rock in this manway could have been prevented had the upraise been properly timbered. Upon this state of facts the appellee, who was the mother of Arthur Bruner, deceased, and who had been supported by him, he being a single man, brought this action, and recovered judgment in the sum of $4,000.

It is contended that the judgment should be reversed for the reason that there was no direct proof that the young man met his death because of falling rock. Some of the hair and a portion of the skull of the man was found sticking upon the wall about four feet above the platform, and one of the employés of appellant made an examination of the rock lying upon the platform and of the walls of the upraise, and failed to find any pieces of rock upon the platform which had the appearance of having recently fallen, and failed to find any place along the walls of the upraise which indicated that rock had recently slipped off. The rock upon the platform was covered with blood which had come from the young man's head, and the witness stated that he did not examine every angle of the broken pieces of rock to determine whether or not they had been freshly broken. The appellant contends that it is possible the deceased might have slipped from the ladder and fallen, striking his head upon the wall, and thus causing the injury which produced his death, and that in the absence of direct proof of the death having been occasioned by falling rock the verdict of the jury should be set aside because it is based upon a mere guess. This matter was fairly submitted to the jury by the court upon proper instructions, and its verdict was against the appellant, and as has already been stated, there was evidence which was uncontradicted that rock had fallen down this manway as recently as the night before Bruner was killed.

In actions of this character it is not necessary to show by eyewitnesses...