Logan v. Day

• Decision Date: 03 February 1920
• Docket Number: 15468.
• Citation: 187 P. 913,110 Wash. 5
• Court: Washington Supreme Court
• Parties: LOGAN et al. v. DAY et al.

187 P. 913

110 Wash. 5

LOGAN et al. v. DAY et al.

No. 15468.

Supreme Court of Washington

February 3, 1920

Department 2.

Appeal from Superior Court, Spokane County; Hugo E. Oswald, Judge.

Suit by John Logan and others against Eugene R. Day and others. From an order granting plaintiffs a new trial after motion for nonsuit had been granted, defendants appeal. Reversed and remanded, with instructions to dismiss.

Plummer & Larevin, of Spokane, and John H. Wourms of Wallace, Idaho, for appellants.

Graves Kizer & Graves, of Spokane, for respondents.

BRIDGES J.

Suit for personal injuries occurring in a mine. At the close of plaintiffs' case, the defendants moved for a nonsuit which was granted; later the court, believing that it had erred, granted plaintiffs a new trial. The defendants have appealed.

The facts are substantially as follows: The mine in which the respondents were injured was worked by driving tunnels into the mountain side until the ore body was reached. The ore vein was then mined upwards towards the surface of the mountain. The vein stood at an angle of about 70 degrees. The ore was mined by driving chambers called 'uprises.' The top, or ceiling, of the ore body is generally spoken of as the 'back.' These chambers are usually about 9 feet high. At the time of the injury in question the uprises extended about 50 feet and there were five chambers therein. The ore is blasted down, and is removed, and upright posts about 9 feet in length, are set, and a floor placed on top of these posts. There are three openings in the floor, the center one of which is a chute, through which the ore is sent to the bottom of the mine. When the floor has once been built, further blasting takes place, and the ore from the ceiling, or back of the vein, drops down on the floor, and when there are some 12 feet of ore on the floor the blasting stops and the ore is put down the chute. As each chamber is completed it is permanently timbered. Two shifts work in each chamber; one at night and the other during the day. Respondents had the day shift. The injury in question occurred in the fifth chamber. For two or three days blasting had been done and on the evening before the respondents went to work, there were about 12 feet of ore on the floor of the fifth chamber. The night shift had worked at putting this ore down the chute. This work is called 'mucking.'

When the respondents went to work on the morning they were injured, they found that the night crew had put down the chute all but about 12 tons of the ore, which it was their duty to remove. They expected to do this by noon of that day. When the night crew started to work, it was their duty to make an inspection of the exposed walls of the chamber, to see whether or not any loose earth or rocks were likely to fall upon them. This inspection is done by sounding the sides of the chamber with a bar of iron or steel. If any loose rock or material is struck by the bar, it will sound hollow, and that would indicate that it is likely to fall. If the wall is solid, it will give the bar of iron a firm, solid ring. Any material which the inspection indicates is likely to fall is barred down by the miners.

It was the duty of the respondents to make a like inspection when they went to work. When they went to work on the morning of the day they were injured, they found that the distance from the floor to the ceiling, or back, was some 17 or 18 feet. They at once inspected the chamber by sounding it and barring down, until they believed they had barred down all the material that was loose. So much of the ore had been removed by the night shift that they could make an inspection of only about 9 feet of the walls because they could not reach higher than that. They spent about an hour and a half making this inspection; they then commenced mucking out, and had been at that work an hour or more, when a large rock fell on them from the hanging wall, and each was severely injured. During the forenoon, before their injury, the foreman, or boss, came to the chamber where the respondents were working, for the purpose of determining how it should be permanently timbered; but he did not make any inspection. So far as the power of the respondents to inspect is concerned, the chamber may be divided into three parts: (1) The upper 8 or 9 feet, which respondents could not inspect because they could not reach it; (2) the middle portion of the chamber, being that portion which they were able to, and did, inspect; and (3) that portion of the walls against which the remaining ore rested, and which, of course, could not be inspected, except as the ore was removed.

The respondents were experienced miners. They had nothing to do with the timbering of the mine; that duty devolved upon certain other employés. They were unable to tell from what portion of the hanging wall the rock which injured them came. The reason the nonsuit was set aside and a new trial granted was stated by the court to be as follows:

'In granting the nonsuit in this case I was of the opinion that the minds of reasonable men could not differ in reaching the conclusion from the evidence that the rock which injured plaintiffs came from the nine foot area. In arriving at that conclusion, I overlooked the inference of the fact (or presumption of fact) that the rock came from above the 9-foot area, which the jury would be entitled to consider by reason of the plaintiffs' testimony of carefully inspecting and sounding the rock in the nine foot area.'

In their brief respondents assert that, while the court was right in granting the new trial, it reached its conclusion by false reasoning. They contend that the new trial was properly granted upon the theory that defendants were obliged to take all reasonable precautions to make plaintiffs' working place safe. They concede that it was unquestionably their duty, when they came into the working chamber, to test the walls within their reach, and, if they found loose or insecure rock, to bar it down. They also concede that it was unquestionably their duty to call the attention of the shift boss, or foreman, to any unsafe condition which they discovered and could not remedy.

As a general proposition, the rule of law stated by respondents is correct, but it is not and cannot be correct in those instances where the duty of inspection for the purpose of making safe rests upon the servant. The cases cited by respondents are instances where there was no duty resting upon the servant to inspect and keep safe his place of labor. Such were the cases of McDonough v. Railway Co., 15 Wash. 244, 46 P. 334, McMillan v. Mining Co., 32 Wash. 579, 73 P. 685, 98 Am. St. Rep. 908, Mullin v. Railway Co., 38 Wash. 550, 80 P. 814, Cheatham v. Hogan, 50 Wash. 465, 97 P. 499, 22 L. R. A. (N. S.) 951, McKenzie v. Colliery Co., 55 Wash. 495, 104 P. 801, 28 L. R. A. (N. S.) 1244, and Cox v. Coal Co., 61 Wash. 343, 112 P. 231. But these cases, and others of like tenor cited by respondents, are inapplicable to the facts of this case. One of the respondents testified as follows:

'When you first go on shift, you always examine around to see what you are up against. If there is any rock hanging over you, you take it down. One man usually takes the pick, and the other man the bar, and go over the walls, and you take and tap and hit them, tap them with the bar or end of it, and if the rock is loose its sounds drummy; if it is solid, it will ring and make the steel ring. We tapped down pretty good. It was a very wet place, water

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