James v. Emmett Min. Co.
| Decision Date | 19 November 1884 |
| Citation | 21 N.W. 361,55 Mich. 335 |
| Court | Michigan Supreme Court |
| Parties | JAMES v. EMMETT MINING CO. |
Error to Menominee.
Kruse & Flannegan and F.O. Clark, for plaintiff.
B.J. Brown and Ball & Hanscom, for defendant and appellant.
This action was brought under the statute to recover damages for the death of Thomas James, claimed to have been caused by the negligence of his employers. He was a laborer, and not a miner, and was employed on work of various kinds about their mine and premises. His death was caused by caving in of the surface over the mine, where he was at the time engaged in removing pumping apparatus and pipes from the mine, where work was, or was about to be, abandoned. Upon the surface over the vein, which ran east and west, there was a shaft-house over the shaft nearest to the place of the accident, a boiler-house about 100 feet west of the shaft and an engine-house west of that. The surface gave way from the shaft to this engine-house, taking down the boiler-house into the mine, making a hole about 60 feet wide by 100 feet long at the surface, and about 60 feet long by 25 feet wide at the top of the rock below the sand and gravel that covered it for depth of about 25 feet. This mass of surface matter with more or less rock and ore, filled up a considerable space in the mine, and the bodies of the persons carried down with it were not found. One person only was found alive in the upper part of the mine. The plaintiff's theory, which prevailed with the jury, was that the mine caved in because not adequately supported. And the immediate cause is said to have been the removal of the under part of a pillar of ore, and the insufficient manner in which the pillar thus undermined was propped up. There had been a partial caving away of this pillar in the year 1882. This surface caving in happened on Monday, April 10, 1883. On the seventh day of the same month, (the Friday before,) this pillar gave way, and from that time until the accident there were, as is claimed by the plaintiff's witnesses, a series of fallings of ore and other material, and appearance indicating danger of some kind, which made it improper to set men at work over this part of the mine. There is less conflict on the actual appearance in the mine than upon some other questions, but there is some conflict of testimony upon several points. The errors assigned cover many specified objections, but are chiefly aimed at what are claimed to be misrulings on the case as it stood on the close of the proofs. Some, however, relate to other matters, which may properly be considered in the beginning.
The declaration was demurred to, originally, on the single ground that it did not aver that the dangerous condition of the premises was unknown to plaintiff's intestate in season to have avoided the danger. The declaration, however, avers expressly that he was without fault, and this would cover want of knowledge, provided want of knowledge would be decisive. On the trial of such a case proof of knowledge under such circumstances as to place the intestate in fault by reason of it might be a complete defense; but it is not necessary here to decide whether a man having some knowledge of danger may not, nevertheless, be blameless when incurring it in the course of employment at which he is set, or must always be deemed negligent when doing so, because an allegation of entire want of fault is as broad as it could well be made. There is, however, a further assignment of error, which claims the declaration to be insufficient because of the invalidity of the statute giving a cause of action in such cases. We are unable to see any force in this suggestion, and it is not rested on authority. The maxim of the common law, that a personal action dies with the person is not a constitutional maxim. The death of the injured person does not destroy the fault of the wrong-doer. There was a period in early English history when death by wrong always involved pecuniary redress; and although for a long time that policy was generally changed, its change was never, so far as we know, based on any idea of want of power in the legislature to restore it. As the party injured has become incapable of receiving redress in person, it must, if granted, go to some one who represents him; and if the legislature see fit to allow the personal representative to sue, and collect damages for the benefit of those relatives and connections who take the personalty when distributed, we cannot see why this is improper. This statute, although in some respects modified, was in force when our present constitution was adopted. Its general policy has been adopted in England as well as in America, and is not entirely confined to these countries. It is for the legislature, and not for the courts, to devise safeguards, if further ones are needed. We think the law is valid.
In order to see the bearing of other assignments, some reference will be proper to the general outline of the case. The defendant company owned an iron mine in Menominee county with a vein running east and west, and inclining somewhat from north to south in its general course. It had been opened westward from the shaft before referred to, about 170 feet on the adit or upper level, and downward to third level below it, and the ore had been removed through this territory to a considerable extent. The view, if it can be so called, was nearly perpendicular in this part of the property on the southerly side, the south wall sloping slightly outward towards the south for about half way down, and then turning a little the other way from the perpendicular direction so as to overhang slightly as far down as the lower level, where the vein practically ran out. The ore vein, which was narrow at the top, being about 18 feet wide where it reached the earth above, did not widen very much until it reached the lower edge of a hanging wall of rock and ore mixed, which, from the scale on the diagrams, seems to have reached down about 125 feet from the top of the rock, and not far from 150 feet from the surface of the ground. This deep wedge-shaped hanging rock, called in mining language a horse, penetrated into the ore vein throughout its course, the vein pinching together about 170 feet west of the shaft. A considerable part of it went down when the mine caved in. Below this wedge the vein widened so as to be at first level below it, according to defendant's witnesses and diagrams, about 65 feet wide, running up also behind the horse to the junction of that with the north wall, or what is known as the hanging wall, and sloping and narrowing downward from its widest point to the lowest level, about 130 feet. These distances are not material, but are variously given. In mining out the ore there were parts of the ore vein left substantially untouched from wall to wall at intervals, the parts so left being of uniform thickness, and the one in question being 18 feet thick, and filing the entire width of the vein. These cross-sections of ore were called pillars, and their object was to keep the walls from crushing together, and thus supporting the mine.
The witnesses do not in terms agree how far such support existed but plaintiff's witnesses testified to its importance in keeping the whole upper part of the mine from depression. The pillar in question here was about 20 feet west of the shaft, and the ore had been worked out on both sides of it, leaving open spaces east and west. The pillar itself did not reach the extreme top of the mine, and above the level, called the first level, the ore had been taken out, but just how much is perhaps doubtful. The only openings from east to west through this pillar were the usual passage-ways and drifts. The hanging wall was hard jasper, and the foot-wall soap-stone of apparently not very tough quality. The ore itself was, according to most of the testimony, a not very compact or tenacious soft iron ore, which, however, required to be blasted. Having removed the ore on either side of the pillar, and the mine having become to a large degree worked out at this part of it, the managers were proceeding to remove what was left in the pillars, or so much as they could safely remove, the process being called scramming, or robbing the mine, by several of the witnesses. To do this they began at the bottom of the pillar and worked upward towards the surface, taking away the ore by blasting, and putting in timber-work in its place. At the time when this trouble arose, this work was being done near the second level, below the adit or uppermost level, or about 200 feet down from the surface of the ground, where the vein was about 40...
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