Lively v. American Zinc Co. of Tenn.

• Decision Date: 22 January 1917
• Citation: 191 S.W. 975,137 Tenn. 261
• Parties: LIVELY v. AMERICAN ZINC CO. OF TENNESSEE.
• Court: Tennessee Supreme Court

191 S.W. 975

137 Tenn. 261

LIVELY v. AMERICAN ZINC CO. OF TENNESSEE.

Supreme Court of Tennessee.

January 22, 1917

Certiorari to Court of Civil Appeals.

Action by John F. Lively, administrator of the estate of Howard J Lively, deceased, against the American Zinc Company of Tennessee. From a judgment of the Court of Civil Appeals reversing a judgment of the Circuit Court for defendant and remanding the case for new trial, both parties bring certiorari. Judgment of the Court of Civil Appeals reversed and that of the trial court affirmed.

NEIL C.J.

This action was brought in the circuit court of Knox county to recover damages for the alleged negligent killing of plaintiff's intestate, Howard J. Lively, in the shaft of the defendant's zinc mine. There were verdict and judgment in the trial court in favor of the defendant, and an appeal was prosecuted to the Court of Civil Appeals. In that court the judgment of the trial court was reversed, and an order entered remanding the case for a new trial. The controversy was then transferred to this court by the writ of certiorari.

Numerous errors were assigned by the defendant against the action of the Court of Civil Appeals. A writ of certiorari was also prosecuted by the plaintiff, likewise complaining against the action of the Court of Civil Appeals in failing to pass upon certain errors assigned in that court.

Though the questions made are very numerous, the controversy lies within a narrow compass.

The defendant had sunk a shaft to a depth of about 600 feet, the greater part of the way through rock. At the foot of this shaft drifts were started east and west. The eastern drift had attained only a few feet, while the western drift had extended about 150 feet, and in this one an upraise had been started for the purpose of making a new shaft for an additional air passage. The main shaft, the only one completed, was 5 feet wide and about 22 feet long, and was divided into four compartments, one for a ladderway required by our statute, two for the passage of ore buckets to transport the product to the surface, and one for the ascent and descent of the miners. This latter division of the shaft was fitted with an elevator.

Our statute requires that the elevator, or carriage used for lowering or hoisting persons, shall be fitted with an improved safety catch, and a sufficient metal covering overhead; that sufficient flanges shall be attached to the sides of every drum, and every machine used for lowering and hoisting persons into and out of a mine; that adequate brakes shall be attached to the drum; that the main coupling or socket attached to the rope supporting the cage shall be made from the best quality of iron; and other things not necessary to mention for the purposes of the present case.

The duty to comply with such and similarly specific provisions of a statute designed as precautions against accidents and injuries is absolute, and they cannot be satisfied by a mere approximation, or by the exercise of "reasonable diligence," or "ordinary care" in an effort to comply. Sundry applications of the principle may be found in the following cases: Deserant v. Cerillos Coal Co., 178 U.S. 410, 20 S.Ct. 967, 44 L.Ed. 1127; Chicago, B. & Q. R. Co. v. United States, 220 U.S. 557, 31 S.Ct. 612, 55 L.Ed. 582; McDaniels v. Rogle Mining Co., 110 Mo.App. 706, 85 S.W. 679; Little v. Norton Coal Co., 83 Kan. 232, 109 P. 768. All of the preceding requirements were strictly complied with, and there is no complaint on that head.

The burden of the controversy is made to rest on certain general language contained in the section in which the foregoing specific provisions subsequently appear. That language reads:

"Persons employed in such mine shall be lowered into and out of the mine by machinery; and when employés are lowered into said mine at the main outlet, the escapement shaft shall be fitted with [safe] and available machinery. * * * The hoisting machinery * * * used for lowering the employés into and out of the mine shall be kept in a safe condition." Acts 1915, c. 169, § 27.

The argument of the very able counsel for the plaintiff bears mainly upon the meaning of the word "safe." In so far as safety could be attained by compliance with the specific requirements that follow in the succeeding parts of the section, it was, as we have already stated, satisfied by rigid compliance. But it is insisted, if we understand the position of the learned counsel, that the word "safe," occurring in a statute, imports not only a compliance with the specific provisions already mentioned and the others referred to, but something in addition thereto, and means a degree of efficiency higher and stronger than that which the common law imposes on the master, in the furnishing of safe tools, machinery, a safe place, etc., to which we shall presently advert; that if something else was needed to make the cage or elevator "reasonably" safe, as for example the attaching of two additional doors, they should have been attached. So the controversy turns upon the meaning of "reasonably safe," the decision of which we shall postpone until we shall have stated certain additional facts, and also the charge of the court.

The elevator was securely fastened to uprights in order to insure its ready passage up and down the shaft. It was closed on two sides with steel plates. On one of the other two sides there was a rod or bar about 3 or 3 1/2 feet from the floor of the elevator, and on the other side there was a chain of the same height The floor was made of wood. The bar and chain were movable so that the miners could enter and leave the structure at either side. The shaft was all new, and the elevator had been put in only the day before. On the day Howard J. Lively's death occurred, the day shift had, at the close of its work, about 5 o'clock, blasted down some rock with dynamite in one of the drifts. Lively belonged to the night shift. About 6:30 he and his companions went down to the foot of the shaft in the elevator to prosecute their work. They were in charge of a shift boss, or foreman. Finding the dynamite smoke too thick and oppressive, they all ascended to the surface and waited for about an hour and a half before again going down, in order to give the smoke time to escape through the shaft to the surface. When they went down this last time they remained about an hour and a half, finding the smoke much lighter; but it was still too dense to enable the men to work with comfort, and therefore they all decided to ascend to the surface. Accordingly they got into the elevator. When they had reached to within about 200 feet of the surface Lively grew faint and sank down upon the floor of the carriage, and became unconscious. He was standing, at the time he sank down, at one corner of the elevator, and close to the chain. This chain had not been fastened. He fell over to one side, and was caught by some of the timbers with which the mine was fitted, and so drawn from the elevator and fell down the shaft and was killed. It was, according to the custom of the business, the duty of the first miner who reached the opposite side to put up the chain, but it does not clearly appear whether Lively was the first to reach that point, nor does it appear whether he knew the custom.

The uncontradicted evidence is that the elevator was of the same kind as that used generally over the country in well-managed mines of the same character; although there is evidence that in some mines all four sides are closed with doors, or with lattice work either of wood or of woven wire. It is proven in like manner that the shaft is furnished with timbers on the inside in a manner similar to that

generally used in well-managed mines of a like kind over the country, and there is no evidence to the contrary; but there is evidence to the effect that if the shaft were completely boxed in, it would be safer for the miners ascending and descending, because smoother, and less likely to catch the clothing of any occupant of the elevator in case he should lean or fall to one side or the other, the walls being about 4 inches distant from the elevator; but along with this evidence it is proven that it would be extremely difficult to inspect the timbers, that there would likely be much rotting, and that this lining would probably fall and do considerable injury. It is shown that the timbers are inspected every day; that with the lining or boxing referred to there could be no such inspection.

The chief discussion has arisen, as we have stated, over the meaning of the word "safe," both as to the elevator and to the shaft.

After quoting the portion of the statute which we have set out supra, the trial judge proceeded:

"And it may be further said in this connection that the defendant company was required to construct a reasonably safe shaft; elevator shaft. I instruct you that the meaning of this law as applicable to this case is that it was the duty of the defendant company to provide a reasonably and ordinarily safe elevator and shaft for carrying plaintiff's intestate as well as other employés out of said mine. The determinative question in this case is, Were said elevator and shaft safe according to the intent and meaning of said statute or law? If it was there can be no liability in this case; if it was not then defendant company is liable in damages for the death of plaintiff's intestate, and you should accordingly so find. In considering and determining this question, I instruct you that if said elevator and shaft were in all respects, or more particularly in the respects complained of, up to the ordinary and usual standard of usage and safety, such as were in use generally by well equipped, regulated and operated mines of this character and

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