Metallic Gold Mining Co. v. Watson

• Decision Date: 03 July 1911
• Parties: METALLIC GOLD MINING CO. v. WATSON.
• Court: Colorado Supreme Court

117 P. 609

51 Colo. 278

METALLIC GOLD MINING CO. v. WATSON.

Supreme Court of Colorado

July 3, 1911

Appeal from District Court, Teller County; James Owen, Judge.

Action by Atwood Watson against the Metallic Gold Mining Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Plaintiff alleges that March 19, 1906, he worked for defendant on a mining claim in Teller county, and was sent into a drift on the second level, where there had theretofore been a cave-in that defendant knew it had occurred several months before but did nothing to prevent further cave-ins or injury in the drift; that no timbering had been placed therein, and the law had not been complied with requiring mines to be made safe that the mine was then in a dangerous and unsafe condition and, when it sent him into the drift to work, defendant knew its condition (it will be observed he fails to state what work he was sent to do, or was doing in the drift at the time of the accident, and that he had no knowledge of the condition); that he worked there a little less than an hour when a portion of the walls fell down upon and severely injured him, which was due to no negligence of his, but to the negligence of the defendant. The second defense alleges that plaintiff's injuries, if any, were caused by his own negligence; the third, that he received them while engaged in employment the risk of which he assumed when he entered and continued in the employment.

August Holmes, a juror challenged by defendant for cause, on his voir dire testified: 'I entertain a natural sympathy for the laboring man; am a miner myself. Q. If you started into the trial of this case, you feel that you would start in with a bias in favor of the plaintiff in this case? A. If it was a leaning any way at all, it would lean towards the laboring man. Q. Do you think that the sympathy that you would entertain for a laboring man who has been injured would cause you to favor him in the beginning of the case, and cause your mind to lean in favor of him? A. If the evidence was clear, it wouldn't make any difference to me at all. Q. You state that, if the evidence was clear, you would be able to decide fairly? A. Yes; I would. Q. Just explain what you mean by that. A. If the evidence was muddled the least bit, I would favor the laboring man. Q. It would require perfectly clear evidence against him in order to overcome that feeling, is that correct? A. Yes. The Court: In the trial of this case would you be governed solely by the evidence as you hear it from the witness stand, and the instructions as regards the law as given you by the court, in arriving at your verdict in this case? A. Yes, sir. Q. You would allow nothing else to influence your verdict in this case? A. No, sir; I wouldn't.' Challenge denied. Defendant exercised four peremptory challenges, Holmes being one of the four.

After the jury was impaneled, before the introduction of evidence, defendant moved for judgment because: (1) Upon the pleadings and the law plaintiff is not entitled to recover. (2) The complaint does not state facts sufficient to constitute a cause of action. (3) There is no reply to the defense of contributory negligence. (4) There is no reply to the defense of assumption of risk. (5) The complaint alleges a dangerous condition, but does not allege plaintiff had no notice or knowledge of it. Upon oral application, unsupported, the court allowed plaintiff to file, instanter, a reply denying the affirmative defenses, and then overruled the motion.

To properly understand the case, it is necessary to make a somewhat extended statement of the facts. Plaintiff, an experienced miner, 39 years of age, familiar with all departments of underground metaliferous mining, was employed October 26, 1905, by the defendant on the Bill Nye lode mining claim. It was a prospect, and the company was working four men under a superintendent named Blanchard. The departments of labor were not separated as in large mines and the miners did the timbering. In August and September, 1905, a drift was run on the second level through a lime formation, requiring no timbering at the time; but exposure to air caused it to slack, and pieces of rock to fail from the roof, which, at the time of the accident, was from seven to eight feet above the floor. From his employment in the mine until the accident, some five months, plaintiff passed through the drift several times daily, and was as familiar with its condition as the defendant. There had been no work in or on this drift since it was driven, but it was used by the miners as an entry or passageway to and from their work, and they kept powder stored in it which plaintiff removed on account of the condition of the roof. No one was injured, however, from this use of the drift. An ore shoot was exposed in the roof and Blanchard concluded to make an up-raise and stope it out. The work plaintiff was sent into the drift to do, and was doing when he was injured, of which he speaks in his complaint, was timbering for the up-raise. Under the directions of Blanchard he cleared away the fallen material under the ore shoot and set six posts 6 feet 6 inches high, three on each side lengthwise the drift, on which he placed caps, 9 feet long, across which lagging would be put, to make it a safe place to work. The best timbers were used, and the best plan of work adopted. In the roof over his head, in the ore shoot, was a seam or crack, indicating that a slab, with which he was familiar, was liable to fall. He worked about 30 minutes with his pick and drill trying to get it down, but failed, and was satisfied from the examination he made it was safe. While working plaintiff said to Blanchard that he did not think much of the job. Blanchard examined the rock overhead, said he thought it was safe, and to go ahead. Plaintiff did not tell Blanchard about trying to pry it down. When plaintiff was cutting a hitch or shoulder for a spreader between the center posts, and Blanchard was standing by his side, the slab over their heads, which plaintiff had tried to pick down, fell upon them and injured plaintiff severely. We quote from plaintiff's testimony: 'Q. What kind of work were you starting to do at that particular place; up-raise? A. He [referring to Blanchard] was going to take out that ore. He said there was ore there, and he was going to take it out. Q. Then you were starting the up-raise at that time, and timbering, in order to make it safe to up-raise? A. That is what he said. Q. It was necessary, wasn't it, before you could work permanently in that place, and make the upraise, to put these timbers in to protect the men? A. Yes. Q. You would consider it necessary, wouldn't you? A. Certainly. Q. Somebody had to do that work, didn't they? A. Yes, certainly. Q. In order to protect the men before they could go ahead and make their up-raise? A. Certainly. Q. And that was the work you were engaged in at that time? A. Yes.' Speaking of the slab that fell upon him, he said: 'I tried to pick it down. It wouldn't come. Used a pick and drill. Spent 15 or 20 minutes, perhaps 30 minutes, trying to get that slab down. Spent probably 30 minutes digging at this slab, digging in there trying to get it down. After I had finally stopped trying to get this slab down, felt that it was up there perfectly safe and securely. Q. Now, after you had made that effort, did you, because of this personal examination, conclude that it was safe? A. I thought it was safe there, certainly I did. Q. That was your judgment? A. That was my judgment. Q. What I mean is, Was there anything about the appearance of this particular slab that made you think it was dangerous, any slips or seams or cracks or crevices? A. No more than had been in there for a week or two before. There had been a crack in it. Q. You had seen that for a week? A. Yes. Q. You are sure of that? A. Yes, sir. Q. So after all your effort in there working for half an hour at it, you couldn't pry it down and you concluded it was safe? A. I thought it was safe. I certainly did. * * * Q. I say, both you and Blanchard examined the roof? A. Yes, sir. Q. And you concluded that it was safe? A. Yes. Q. And Blanchard told you he thought it was safe? A. Blanchard said it was safe.' Verdict and...