Melville v. Butte-Balaklava Copper Co.
| Decision Date | 10 February 1913 |
| Citation | 130 P. 441,47 Mont. 1 |
| Parties | MELVILLE ET AL. v. BUTTE-BALAKLAVA COPPER CO. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; Jno. B. McClernan Judge.
Action by Thomas Melville and others against the Butte-Balaklava Copper Company. Judgment for defendant; plaintiffs appeal. Affirmed.
Maury Templeman & Davies, of Butte, for appellants.
Kremer Sanders & Kremer, of Butte, for respondent.
The purpose of this action is to recover damages for the death of Michael Melville, which is alleged to have been caused by the wrongful act of the defendant. The plaintiffs are the widow and minor children of the deceased, and sue as his heirs.
The facts showing how the accident occurred may be briefly stated as follows: On the evening of December 6, 1909, the deceased was in the employ of the defendant as shift boss and pumpman. He had gone on shift at about 7 o'clock in the morning, and had worked continuously from that time until he was injured. He and four other men constituted the shift. They were engaged in excavating a third compartment to the defendant's mining shaft. The work had begun at the 500-foot level, and had progressed upward to the 200-foot level. The two compartments already constructed were used, respectively, for pumping and hoisting purposes. During the work the men stood upon a bulkhead, which extended over the three compartments of the shaft. Owing to the presence of the men there, the cage could not be lowered entirely to the level of the bulkhead. Therefore, in order to remove the débris resulting from the excavation, the men shoveled it into buckets, which were raised, one at a time, to the surface by means of a hook attached to the underside of the deck of the cage. When a bucket was ready to be raised, it was hooked to the cage; then, at a signal by the bell to the engineer at the surface, the cage was raised about five feet, or far enough to clear the bucket from the bulkhead. It was then stopped long enough to enable the men to steady the bucket, so that it would not swing back and forth and bump into the timbers on the way up. Upon the giving of a second signal, it was raised to the surface. When the change shift went on at 3 o'clock in the afternoon, it was found that the air hose line had been broken by blasts set off by the morning shift. The air line came down from the surface by way of the pump compartment, and through the other compartment into the excavation. The deceased, having charge of this shift also, undertook to repair the hose. The point at which the break in it had occurred was some 15 feet above the level of the bulkhead. The deceased went up on the cage to this point, and stepped off upon the timbers separating the pump compartment from the hoist compartment. There being ample room for the cage to pass and repass him, he ordered the men below to send the cage up. Upon its return trip another bucket was attached to it, and the signal given to raise it. As usual, it was stopped for a moment to steady the bucket. By that time the deceased had completed the repairs, and, desiring for some reason to go to the surface, without giving notice to any one of his intention to do so, he attempted to step upon the cage as it passed the position where he was standing. He missed his footing, was caught between the cage and the timbers, and so badly injured that he died within a few days thereafter.
The wrongful act for which recovery is sought is alleged in the complaint substantially as follows: That the deceased was working underground in defendant's mine in the capacity of shift boss and pumpman; that on December 6, 1909, the defendant wrongfully and intentionally required him to remain at work continuously for a period of more than eight hours; that after he had been engaged for more than eight hours he was "dealt by and in and from said required employment grievous bodily injuries, from which he died thereafter on the 12th day of December, 1909;" and that there was not, at the time of the injury, any emergency by which life or property was in imminent danger. The answer denies generally the allegations of the complaint. It alleges that the injury of the deceased was due solely to his own negligence in attempting to step upon the cage while it was in motion, and that in so doing he assumed the risk, knowing the danger thereof. The reply joins issue upon these allegations.
It will be observed that the complaint does not allege that the deceased was in such a condition of mental and physical exhaustion, induced by overwork, that he was unable to give proper attention to his surroundings, and that this was the efficient cause of his injury. Though the evidence does not show definitely whether the deceased had continued work after the lapse of eight hours at the instance of defendant's superintendent, or whether he did it voluntarily to accommodate the shift boss who should have relieved him, it is conceded, for the purposes of this case, that he continued at work, with the knowledge of the superintendent, under a standing order made by him that each shift boss should continue at work until he was actually relieved by his successor. At the close of the evidence the court granted a nonsuit and rendered judgment for the defendant. The appeal is from the judgment. Did the court err in granting the nonsuit?
The plaintiffs are entitled to recover, if at all, under section 6486 of the Revised Codes, which declares:
The theory of counsel for plaintiffs is that the provisions of the Codes which declare that "the husband must support himself and wife out of his property or by his labor," etc. (Rev. Codes, § 3692), and that "the parent entitled to the custody of a child must give him support and education suitable to his circumstances," etc. (Id. § 3741), and similar provisions, confer vested rights upon the wife and children to support by the father; and that in every case where they have been deprived of this support by the death of the father, caused by the wrongful act or neglect of another, they have a cause of action against such other person, without regard to whether the father, if death had not ensued, could have maintained an action in his own behalf. It is argued, therefore, that, since the deceased was injured while at work at the request of the defendant, in violation of the provisions of sections 1739 and 1740 of the Revised Codes, though the death was caused wholly by the negligence of the deceased himself, the defendant is to be deemed guilty of his death by wrongful act, within the meaning of the statute.
Sections 3692 and 3741, supra, are not pertinent to the present inquiry. They may be dismissed from consideration, with the remark that, so far as they go, they declare the mutual obligations of the husband and wife with reference to the support of the family and the education of the children. They enjoin duties upon the living parents, and do not purport to confer vested rights upon the wife and children, within the meaning of the expression "vested rights" as it is ordinarily used.
Section 1739, supra, declares that eight hours shall constitute a day's work upon public works and in certain industries, including operations in underground mines. Section 1740 declares a violation of any of its provisions to be a misdemeanor, punishable by fine or imprisonment, or both. In State v. Livingston Concrete, etc., Co., 34 Mont. 570, 87 P. 980, 9 Ann. Cas. 204, these provisions were examined by this court. It was held that the inhibition contained in the latter includes both employer and employé, and renders both subject to the penalty whenever the former causes the employé to work and the latter works for a period longer than eight hours. We shall not undertake to question the contention of counsel that the continuance of work beyond the statutory period is to be deemed a proximate cause of Michael Melville's death. It is the general rule that, where a statute makes a requirement, or prohibits a thing, for the benefit of a person or class of persons, one injured by reason of a violation of it is entitled to maintain an action against him by whose disobedience he has suffered injury; and this is true whether the statute is penal in its character or not. Wharton on Negligence, § 443; Bishop on Noncontract Law, § 132; 1 Thompson's Commentaries on the Law of Negligence, §§ 10, 210; Queen v. Dayton Coal Co., 95 Tenn. 458, 32 S.W. 460, 30 L. R. A. 83, 49 Am. St. Rep. 935; Pauley v. Steam Gauge Co., 131 N.Y. 90, 29 N.E. 999, 15 L. R. A. 194; Pelin v. New York C. Ry. Co., 102 A.D. 71, 92 N.Y.S. 468; Scally v. W. T. Garratt & Co., 11 Cal.App. 138, 104 P. 325. A violation of the statute is negligence per se, or, properly speaking, legal negligence. Osterholm v. Boston & Mont. C. & S. Min. Co., 40 Mont. 508, 107 P. 499; Neary v. Northern P. Ry. Co., 41 Mont. 480, 110 P. 226.
But the rule thus broadly stated does not preclude the defendant from showing that the negligence of the plaintiff was a proximate cause of the injury, or that he assumed the risk, and hence is not entitled to recover. The purpose of such statutes being to protect the employé or the public, they do not abrogate these defenses, unless they expressly so declare. Their effect is to render a failure to comply with their...
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