Keane Wonder Mining Co. v. Cunningham

• Decision Date: 03 May 1915
• Docket Number: 2495.
• Citation: 222 F. 821
• Parties: KEANE WONDER MINING CO. v. CUNNINGHAM.
• Court: U.S. Court of Appeals — Ninth Circuit

222 F. 821

KEANE WONDER MINING CO. v. CUNNINGHAM.

No. 2495.

United States Court of Appeals, Ninth Circuit.

May 3, 1915

Gavin McNab, B. M. Aikins, and A. H. Jarman, all of San Francisco Cal., and Sweeney & Morehouse, of Reno, Nev., for plaintiff in error.

Dixon &amp Miller, J. B. Dixon, and A. Grant Miller, all of Reno, New for defendant in error.

Before GILBERT and MORROW, Circuit Judges, and VAN FLEET, District judge.

GILBERT Circuit Judge.

The defendant in error, who will herein be designated the plaintiff, in his complaint alleged that he was injured while working as a mucker in the mine of the defendant, that the defendant carelessly drove a stope upwards from a tunnel situated in its mine, and failed and neglected to use ordinary and reasonable care in inspecting the roof or top of said stope, and failed and neglected to pick or bar down from said roof loose rock and ore therein, and caused the plaintiff to work in said tunnel at the bottom of said stope while the stope was in a dangerous condition, owing to the negligence of the defendant in not properly timbering the same, and in not properly inspecting and examining the same and in not properly picking or barring down the loose rock at the roof of said stope, by reason whereof an amount of ore and rock fell, causing serious injury to the plaintiff.

It is contended that the court below erred in denying the defendant's motion, at the close of the testimony for an instructed verdict in its favor, and it is said that the evidence conclusively shows that it was the duty of the plaintiff, before working in the place where he was injured, to examine the roof of the stope and to bar down any loose material that might remain thereon, and that there was no evidence to show that the defendant was negligent. The view of the court below on this branch of the case is shown where, in denying the motion for a nonsuit, it said:

'Now, here is a large chamber at the point where the accident occurred. The hanging wall was 25 feet above the foot wall, and an enormous body, 60 tons of ore, were left on the hanging wall. It seems to me that in itself was negligence; at least it is a fact tending to show negligence. On the existence of that fact, I hold there is testimony here showing negligence.'

The evidence indicated that the ore body varied in thickness, and was from 8 to 15 feet or more, and that it contained a flat seam carrying galena running through and causing a cleavage at about six or seven feet above the foot wall. The ore below the seam was broken out by the use of piston drills working against the breast. The ore above the seam was mined by means of Waugh drills, which were used to blast down the ore from the hanging wall. At the place where the accident occurred, the hanging wall was graphitic schist. After shooting the holes drilled by the Waugh drills, there would, at times, remain ore bodies, more or less shattered, but still unbroken from the hanging wall. plaintiff was working. The ore body was white quartz, and between the ore body and the hanging wall there was a gouge, varying in thickness from 1 to 18 inches, a soft black graphitic schist, the presence of which rendered any body hanging below it likely to become detached from the hanging wall. The tendency of the blasting which followed the use of the Waugh drills was to loosen the ore which might still remain thereafter on the hanging wall. To prevent the falling of such ore, and to make safe the working place underneath the same, it was the custom to bar down such rock as might be loose and removable. The defendant contends that this duty of inspection and barring down rested upon the muckers, and argues that it has discharged its full duty in placing that burden upon the muckers, and that therefore it was not negligent. But the plaintiff testified otherwise. He said that it was the duty, not of the muckers, but of the miners, to bar down the loose rock. He testified: 'The miner goes in first and bars down the loose rock, and he tells the mucker when it is safe for him to come in'-- and he said that on the day on which he was injured, the foreman, Mr. Roper, took him in there to work, 'and I though it was all right. Mr. Roper said nothing to me at all. ' He testified also that:

'Sometimes the foreman himself would bar down the loose rock and see that the place was safe before we would go in there to work.'

So the witness Dropulich testified that it was not the muckers' business to use the pinch bars to pick the rock from the roof-- 'that is a miner's business. I never was work with that. I didn't see it either. ' Perez, another mucker, who was working in the mine, testified to the same effect, and Porter, who was a miner, testified that it was his duty 'to bar down or pick down or sound the rock after a blast to see whether it was safe, or to make it safe ' The defendant offered testimony to the contrary. We have nothing to do, however, with the weight of the testimony. We are not convinced that the court below erred in holding that the evidence offered by the plaintiff, if true, was sufficient to show negligence on the part of the defendant. This is not a case in which the only evidence of negligence is the fact of the accident. The jury may have found negligence in the fact alone that ore was allowed to remain on the hanging wall, or that there was want of proper care in inspecting the ore hanging from the roof...