Kinsel v. North Butte Mining Co.

• Decision Date: 11 January 1912
• Citation: 120 P. 797,44 Mont. 445
• Parties: KINSEL v. NORTH BUTTE MINING CO.
• Court: Montana Supreme Court

120 P. 797

44 Mont. 445

KINSEL v. NORTH BUTTE MINING CO.

Supreme Court of Montana

January 11, 1912

Appeal from District Court, Silver Bow County; Jeremiah J. Lynch Judge.

Action by Forrest S. Kinsel against North Butte Mining Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

C. F Kelley, L. O. Evans, D. Gay Stivers, and W. B. Rodgers, for appellant.

J. B Cappo, Maury & Templeman, and J. O. Davies, for respondent.

SMITH J.

Action by employé against employer for damages growing out of personal injuries sustained in the Speculator mine. Plaintiff had a verdict and judgment for $1,500. Defendant appeals from the judgment and also from an order denying a new trial.

The complaint charges: "That the defendant commanded and ordered the plaintiff, on the 27th day of January, 1910, to go to work at, and in obedience to such command the plaintiff went to work at, No. 1696 stope connected with the main shaft of the defendant of the Speculator quartz lode mining claim; that the defendant had negligently permitted the said place to become unsafe and dangerous, and, through the negligence of the defendant, the said place was unsafe and dangerous at the time that plaintiff went to work there through the command of the defendant, for that the said place was in loose ground, there was much loose rock and boulders hanging above the said place, and the same was negligently and insufficiently timbered in that the last set of timbers in front of the face had been placed in permanent position, and over the same two long stringers had been negligently placed above the set and resting on the said last set, and the said large amount of rocks and boulders and dirt had been by the defendant negligently left hanging and resting on the said stringers, so that there was a great and extraordinary weight on the said stringers, and consequently on the said set, with a tendency to crush the said set forward and collapse the same, there being an excavation under the said set and beyond the same to the face--the said face being about 30 feet distant from said set; that the defendant knew of the dangerous condition of the said place before it set the plaintiff there to work and before the plaintiff went there to work, or, if the defendant had used reasonable care it would have known of the dangerous condition of the said ground; that the plaintiff did not know of the unsafe condition of the said set, and of the unsafe condition of the said place before he went there to work; that immediately upon the arrival of the plaintiff at the said place, the said ground above the said stringers collapsed, and the set collapsed and the ground came down upon the plaintiff."

The answer, in addition to a denial of any negligence on the part of the defendant, alleges that the plaintiff was injured by reason of a lack of ordinary care on his part, that his own negligence and that of his fellow servants contributed directly to his injury, and that he was engaged in making safe the place where he was injured, and therefore assumed the risk of injury.

It will be noted that the complaint charges primary fault on the part of the defendant in that it had negligently placed two long stringers above the set, resting on the set, upon which a large amount of rock, boulders, and dirt were negligently allowed to rest, so that there was an extraordinary weight thereon "with a tendency to crush the set forward and collapse the same." It is then charged that immediately upon the arrival of plaintiff "the ground above the stringers collapsed and the set collapsed." The collapse is presumably to be attributed to the negligent acts of the defendant already pleaded, although the complaint does not in terms so charge.

1. It is contended by the appellant that the charge in the complaint that the stringers were "negligently placed" must be construed to mean, simply, that it was negligence to place stringers there at all, and that it could not mean that they were placed in a negligent manner. On the other hand, the respondent argues that the phrase is sufficient to allow proof that the stringers were placed in a negligent manner in that the sets were not properly "laced" and the leading set was not "breast blocked" or "angle braced." It is also contended for the respondent that the complaint charges generally that the place was negligently and insufficiently timbered. We do not agree with any of these contentions. In our judgment, the complaint, liberally construed, charges that the stringers were placed in a negligent manner, and that a large amount of rock, boulders, and dirt were negligently allowed to rest thereon, but it fails to charge any negligence in failure to lace, breast block, or angle brace. There is no general allegation that the place was negligently or insufficiently timbered. The allegation is special and to the effect that the stringers were placed in a negligent manner, considering the fact that an extraordinary weight rested upon them. We are not to be understood as holding, however, that the absence of lacing, breast blocks or angle braces on the leading set could not be taken into consideration in determining whether, under the circumstances, the stringers were negligently placed. There is, however, no substantial testimony to justify the conclusion that the use of breast blocks was practicable.

We hold that there was no material variance between the allegations of the complaint as above construed, and the facts proven by the respondent.

2. The next contention of the appellant's counsel is that the court erred in overruling their motion for a nonsuit.

Although it is so alleged in the complaint, there is no testimony to warrant the conclusion, and indeed it was not claimed at the trial, that there was any negligence in allowing the loose rock to hang over the stringers. So that the only negligence complained of was that the stringers were negligently placed. It is also contended by counsel for the appellant that not any negligence could be predicated upon the fact that blocks were placed under the stringers for the purpose of tilting them up to an inclined position, thus increasing the liability of the forward set collapsing, and rendering the method employed defective. The complaint does charge, however, as aforesaid, that the stringers were negligently placed, and we think the matter of blocking was incident to the placing of the stringers and fairly comprehended in the allegation. A special demurrer might have been employed to bring out these specific matters before trial.

We quote such portions of the testimony as we deem necessary to illustrate the situation at the time of plaintiff's injury. He testified: "On the 27th day of January, 1910 I was working on the 1696 stope of the Speculator mine. Me and my partner went down from the 1200 and two shovelers went with us, and the other two miners that was working partners with us, they came from the 1600 up. We congregated there about four sets from the set that collapsed. We could see from where we were standing that the sets had not been laced and our two partners went back to the manway to get lacing. We started to go to look at the place. We didn't have time to realize the danger of the place. We simply went into the place and just got in front of the two posts when the two sets went ahead. I say the two sets, because only two of the posts were laced and it pulled the second set out with the first posts. I didn't have much time to realize what was the cause of it. There was a lot of ground came with it. I was hit in the face with a cap and knocked down and injured. I was holding my light up this way, looking at the back, to see what had been done by the shift previous. I had been last at that point on the previous shift some 16 hours before. I just had time to walk in and turn around when it came in on me. It would be better if it had not been laced at all than to be laced on one side. The stringers were cribbed up to the roof in front, as near as I could see in the time I had. There were some blocks under the back end of the stringers, the tail end, under the second cap, making the stringers higher at the front end. During that time I just walked in front of the post to look and see in what condition the place was and if there was any danger existing. The object of putting stringers in a mine like that is to catch the back so a man can work ahead, if they are put in correctly. The function of the stringers is to sustain the back, to keep the men safe who are going to put in the next set ahead. A timber at 45 degrees will sustain more weight than a timber at approximately 20 degrees, because it is straighter; it holds more when it is straighter than when it leans over more. Morrow, my partner, was a timberman and we worked together. On the night of the 27th we went back there to do some work, to timber--that is, to take the place up where it was left off; and whatever condition the shift ahead of us left it, we were to go ahead with the work. We were both experienced men. The purpose of timbering a place like this stope is to make it safe for the men that are working there--miners, shovelers or whoever they are. I didn't know the conditions that existed in there; I didn't know that the cave was in that shape, because they worked into it the shift previous. I was there 24 hours before this time, but I didn't see this cave because they hadn't broke into it yet. *** When I went to work there on the 27th, after I got in there to look at the place I see the big opening and the ground that was lying on the second floor. It was considerably different from the way it was when I left it that morning; it had caved a whole lot more and these stringers had been put in over the set. I am...