Lendberg v. Brotherton Iron Min. Co.

• Decision Date: 07 June 1889
• Citation: Lendberg v. Brotherton Iron Min. Co., 75 Mich. 84, 42 N.W. 675 (Mich. 1889)
• Court: Michigan Supreme Court
• Parties: LENDBERG v. BROTHERTON IRON MIN. CO.

42 N.W. 675

75 Mich. 84

LENDBERG v. BROTHERTON IRON MIN. CO.

Supreme Court of Michigan

June 7, 1889

Error to circuit court, Gogebic county; WILLIAM D. WILLIAMS, Judge.

Chas. F. Button, (Frank E Robson, of counsel,) for appellee.

CAMPBELL J.

This suit is brought to recover damages for the death of John Lendberg, who was employed in defendant's mine in Gogebic county, and who was accidentally killed February 22, 1887 under these circumstances: Defendant had let a contract to certain parties to sink a shaft from a level some 50 feet from the surface, down to which another shaft already existed. The work was not carried on from the surface, but the new shaft was started at the level and had been sunk 25 or 30 feet. A windlass was rigged on a platform across the opening on the level, and the rock was brought up in a bucket to this point, and removed along the drift. About six feet below the windlass a pump was set on timbers at one side of the shaft, with a plank for the pump-men to stand on, reached by a short ladder from the level. The bucket was raised and lowered in the shaft so as not to come in contact with the pump-stand. Lendberg was employed by defendant, and it was his duty to go down and oil the pump, and see that it was in order, at the times when the miners changed work and went to their meals. Except at these times he was not required to go down, unless some occasion called for it; and the miners were expected to see to the pumps while they were at work in the shaft. The bucket for raising rock was attached by a hook to a rope which was worked by the windlass, and was an inch and a half in diameter. It is claimed the defendant, which furnished this rigging for the use of the contractors, was liable for its having been allowed to get worn or cut by the hook, and the only negligence relied on was the condition of this rope. The theory of plaintiff-which is not very clearly set out in the declaration-was that this rope was kept in use when defendant had been made aware of its condition, and that while Lendberg was at the pump-stand and a bucket was being hoisted up to the windlass, the rope broke and the bucket struck and broke the plank on which Lendberg stood, and he was thrown into the shaft, and fell on the bucket, and was so injured that he died. It appeared that on the morning of February 22, 1887, about 8 o'clock, he was drawn up out of the shaft in the bucket, and was taken home, and died in 12 or 13 hours. Evidence was received against objections that some time during the interval he said that the bucket fell by reason of the rope breaking, and broke the plank, and that he fell on top of the bucket. Except for this testimony there was no testimony except hearsay as to the cause or manner of his death. No eye-witness was sworn who saw the transaction. If it happened as charged, there were men at the windlass who must have known when the rope broke, and men in the shaft who loaded the bucket, and who would have been in peril from the fall of the bucket from overhead. These men were the contractors who had charge of all but the pump, and who could not have been unknown. Some of them were sworn, but none who were at the place when Lendberg was injured. It is claimed by defendant that the manner and cause of his death do not in any responsible way appear, and that there was nothing from which the jury could properly have been allowed to find plaintiff's case made out. As this general failure of proof is relied upon as emphatically as the specific errors of less comprehensive bearing, a reference to the circumstances will be proper in the beginning. The work being let by contract, the defendant had no control of the shaft-sinking beyond such oversight as would see that it was properly placed. This would cease as soon as the shaft had been fairly started; and the case shows that at the time of the accident the contractors had charge of all the mining operations, being furnished with the hoisting apparatus, which they ran themselves, and running the pump, except as it required at intervals Lendberg's attention. The bucket, when loaded, weighed not over 200 pounds, and the rope was an inch and a half in diameter, and had not been used long. There were certain persons occupying subordinate positions in the mine, known as "shift bosses," who, under direction of the mining captain, visited various places in the mine to answer calls for what might be needed, and, in the case of miners employed on wages in the ordinary way, to see that their work was attended to. In the case of contract work they did not interfere under ordinary circumstances.

A witness named Lake, who was one of the contractors, said that about 4 in the morning of February 22, 1887, Mr. Harris, who was the shift boss during that period of the day in this part of the mine, was at the place where Lake and his company were employed, and Lake showed him that the eye of the hook-which he says was of square iron-had worn in from a quarter to half an inch, and that there should be a different hook obtained. According to his story, Harris recognized the fact, and said that the blacksmith should have one made. In the mean time he told Lake to fix the rope himself, which all of the testimony shows could have been done by drawing the rope through further, so as to have a sound part in the eye of the hook. All the witnesses examined on the subject show that it was the business of the persons using the bucket and tackle to attend to this themselves, and it was manifestly a very simple matter,-within any one's comprehension. The court below rightly held that if this...