Jones v. Florence Min. Co.

• Decision Date: 15 May 1886
• Citation: 66 Wis. 268,28 N.W. 207
• Parties: JONES, BY ANOTHER, HIS GUARDIAN AD LITEM, v. FLORENCE MIN. CO.
• Court: Wisconsin Supreme Court

66 Wis. 268

28 N.W. 207

JONES, BY ANOTHER, HIS GUARDIAN AD LITEM,

v.FLORENCE MIN. CO.

Supreme Court of Wisconsin.

May 15, 1886.

Appeal from circuit court, Milwaukee county.Adolph Herdigen and J. G. Flanders, for appellant, George Jones, by another, his Guardian ad Litem.

Van Dyke & Van Dyke and J. G. Jenkins, for respondent, Florence Min. Co.

TAYLOR, J.

The appellant, a minor, brought this action to recover damages for an injury which he sustained while in the employ of the respondent company. The uncontroverted facts in the case are as follows: The appellant was at the time of the accident, according to his testimony, less than 15 years old. He had been employed three weeks before by the company to work above ground, carrying the drills and other tools from the mouth of the mine then being worked by the company to the blacksmith-shop for repairs, and bringing them back to the mouth of the mine; that he had been so employed for about three weeks before he was injured; that on the day the injury was received the appellant had gone down into the mine, and was at work there carrying the drills from the place where they were used by the miners to the bottom of the shaft, and put them in the bucket, go up with them, and carry them to the blacksmith-shop, get them repaired, and then return them to the miners in mine No. 1; and that while he was in the mine, sitting down and waiting to take some drills which the miners were still using, a large piece of ore fell from the roof of the mine, and struck him upon the leg, and so injured it that it became necessary to amputate it. To recover damages for this injury this action was brought.

Whether the appellant was sent into the mine by either the superintendent or captain of the mine, or by the mine boss, is a controverted question. The appellant, and at least one of his witnesses, testified on the trial that he was, on the morning of the day on which the accident happened, sent down into the mine to work in carrying and returning drills, as above stated; and that previous to this time he had not worked in the mine at all, although he admits he had been down in the mine a few times before, but had not been sent there to do any work until the morning of the accident. The captain of the mine and pit boss both testified that the appellant was not sent into the mine by either of them to do any work, but, on the contrary, that he had been forbidden by them to go down into the mine for any purpose. It is shown by the evidence that the appellant was placed under the pit boss, with instructions to do what the boss required him to do. There was testimony given on the trial, on the part of the appellant, showing that the pit boss was notified several times before the accident happened that the roof of the mine was in a dangerous condition at the place where the accident happened, and that it ought to be attended to at once; and that the captain of the mine was informed the day before the accident happened that the roof of the mine was in a dangerous condition. The same witness also testified that it was the duty of the pit boss to see that the mine is made all safe. This fact was also controverted, and, on the part of the defendant, the evidence was that it was the duty of the miners themselves to see to the safety of the roof and walls of the mine,--especially to see that all loose or dangerous rocks or ore was removed from the roof of the mine. But as the circuit judge directed a verdict for the defendant, we must, for the purposes of this appeal, consider the testimony given on the part of the appellant as though it were uncontradicted by the evidence given on the part of the respondent; and the question is whether, upon the evidence given by the appellant, the jury would have been justified in finding a verdict for the appellant.

On the part of the appellant it is claimed that, upon the evidence produced, the jury would have been justified in finding a verdict for the plaintiff upon two grounds: First. That it was the duty of the company to see that the roof of the mine where the plaintiff was at work was kept in a reasonably safe condition, and that if the injury occurred from a want of reasonable care on the part of the company in keeping the roof of the mine in such safe condition, then the company is liable to the plaintiff for the damages sustained. Second. That the company owed a duty to the plaintiff, who was a minor not over the age of 15 years, if it sent him to work in a dangerous place, to fully instruct him as to the danger of the employment; and if it neglected to so instruct him, and he was injured by reason of a danger of which he was not informed, and of which he had no adequate knowledge, then the defendant is liable, even though the accident was caused by the neglect of those employed in the mine, and not of the company.

On the part of the respondent it is claimed that the plaintiff was properly nonsuited-- First, for the reason that the evidence conclusively shows that the accident happened solely through the fault of the miners working in the mine with the plaintiff, and so occurred through the fault and negligence of the co-employes of the plaintiff, and not through the fault of the company; second, if it should be admitted that it was the duty of the pit boss to see that the roof of the mine was kept in a safe condition, and the accident happened through the negligence of such pit boss, such negligence on his part would be the negligence of a co-employe, and not the negligence of the company, and the company would not be liable; third, that the injury occurred by reason of an accident which is incident to the business of working in mines, the risk of which the employe assumes when he enters the service, and there is no express or implied contract on the part of the mining company to protect him against such accidents.

As to the first point made by the appellant, we are not prepared to say that it is well taken. There is the statement of one witness on the part of the plaintiff, made in a general way, “that the pit boss is supposed to get ore out of the mine, and see that the back is all right, and make the mine all safe.” This is the only evidence given on that subject on the part of the appellant upon that point, and there is no explanation by the witness showing from what source he obtained his information as to the duty of the pit boss in this respect. On the part of the respondent the evidence is very strong that it was and is the duty of the miners themselves to see that the roof and sides of the mine are made safe against all danger from loose ore or stones in the roof or sides of the mine in which they are working at the time, and as to that matter the pit boss has no particular charge or duty. We have grave doubts whether it would be our duty to set aside the nonsuit upon this point alone, where the evidence is so overwhelmingly against the plaintiff. There may be other dangers in the working and management of a mine which the court would, even in the absence of evidence, charge the employers with the duty of guarding against for the protection of those in their employ; but the danger resulting from leaving loose stones or ore in the roof or sides of the mine is a danger which the employer may well impose the duty of guarding against upon those working in the mine. Such danger is the direct result of their operations, and they are always on the ground, and have better facilities for knowledge when a danger of that kind exists, and for removing the same, than the pit boss or captain of the mine, and there would seem to be no ground for holding that the owner of the mine may not impose such duty upon the miners themselves.

A different question might have arisen had the proofs shown that, notwithstanding the general duty of the miners to provide against this danger, they had neglected to perform their duty, and the knowledge of this neglect had been brought home to the captain of the mine, or even the pit boss, and no steps had been taken, within a reasonable time, to remove such danger, or cause it to be removed, and an accident had happened after such neglect to an employe whose duty did not require him to protect himself against such danger. See Gilman v. Railroad Co., 13 Allen, 433, 441, 442, and cases there cited.

A case of that kind was decided by the house of lords on an appeal from a Scotch court, and adversely to the mining company. Paterson v. Wallace, 1 Macq. 748. That was a mining case. The action was brought by the widow and children of the husband and father, who had been killed while in the employment of the defendants in their mine, by the falling of a stone from the roof of the main road of the mine while the deceased was at work in the mine at the spot where the stone fell. The evidence showed that the under-ground manager of the mine had notice of the dangerous condition of the stone before the accident happened, in time to have removed it before it fell; that he advised the workmen that there was no immediate danger, and afterwards promised to remove it, and sent some persons to remove it, but before they reached the place the stone fell, and killed the deceased. Upon that proof, the Scotch court directed a verdict for the defendant;and upon appeal to the house of lords the judgment was reversed; that court holding that, upon the evidence, the case should have been submitted to the jury, because the evidence of the plaintiff showed that the underground manager of the mine knew of the dangerous condition of the stone, and having such knowledge, it became his duty to cause it to be removed within a reasonable time, and if he neglected so to remove it, and an injury happened to a person working in the mine by reason of such neglect, the company was liable in damages to the person so injured. In the opinion in that case it is said the court ought to have stated the law to the jury as follows: “That if Snedden, ...