Metallic Gold Mining Co. v. Watson

Citation117 P. 609, 51 Colo. 278
Case DateJuly 03, 1911
CourtSupreme Court of Colorado

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...

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8 practice notes
  • Blades v. DaFoe, No. 83SC306
    • United States
    • Colorado Supreme Court of Colorado
    • 8 Julio 1985
    ...a peremptory challenge to excuse the juror does not render the error harmless. 5 For example, in Metallic Gold Mining Co. v. Watson, 51 Colo. 278, 117 P. 609 (1911), a juror, who was employed as a miner like the plaintiff in that case, stated that he entertained a natural sympathy for the l......
  • Smith v. People
    • United States
    • Colorado Supreme Court of Colorado
    • 3 Julio 1911
    ...v. People, 24 Colo. 510, 52 P. 1025, 65 Am.St.Rep. 245; Mitchell v. People, 24 Colo. 533, 52 P. 671. Affirmed. CAMPBELL, C.J., concurs. [51 Colo. 278] MUSSER, J. (specially concurring). I concur in the conclusion only. In order to reach a verdict of guilty, the jury must necessarily have fo......
  • Creede United Mines Co. v. Hawman
    • United States
    • Colorado Court of Appeals of Colorado
    • 11 Noviembre 1912
    ...as April 11, 1911, the Supreme Court has reaffirmed the doctrine of the cases heretofore mentioned. Metallic Gold Mining Co. v. Watson, 51 Colo. 278, 117 P. 609. This was another personal injury case. Plaintiff was sent into a drift to make an upraise and stope out the ore which appeared in......
  • Golesh v. Utah Apex Mining Co., 2922
    • United States
    • Supreme Court of Utah
    • 30 Diciembre 1916
    ...347, 120 N.Y.S. 895; Knorpp v. Wagner, 195 Mo. 637, 93 S.W. 961; Hencke v. Ellis, 110 Wis. 532, 86 N.W. 171; Metallic G. M. Co. v. Watson, 51 Colo. 278, 117 P. 609, Ann. Cas. 1913A, 1276; Thurman v. Pittsburg, etc., Co., 41 Mont. 141, 108 P. 588; Rohrabacher v. Woodard, 124 Mich. 125, 82 N.......
  • Request a trial to view additional results
8 cases
  • Blades v. DaFoe, No. 83SC306
    • United States
    • Colorado Supreme Court of Colorado
    • 8 Julio 1985
    ...a peremptory challenge to excuse the juror does not render the error harmless. 5 For example, in Metallic Gold Mining Co. v. Watson, 51 Colo. 278, 117 P. 609 (1911), a juror, who was employed as a miner like the plaintiff in that case, stated that he entertained a natural sympathy for the l......
  • Smith v. People
    • United States
    • Colorado Supreme Court of Colorado
    • 3 Julio 1911
    ...v. People, 24 Colo. 510, 52 P. 1025, 65 Am.St.Rep. 245; Mitchell v. People, 24 Colo. 533, 52 P. 671. Affirmed. CAMPBELL, C.J., concurs. [51 Colo. 278] MUSSER, J. (specially concurring). I concur in the conclusion only. In order to reach a verdict of guilty, the jury must necessarily have fo......
  • Creede United Mines Co. v. Hawman
    • United States
    • Colorado Court of Appeals of Colorado
    • 11 Noviembre 1912
    ...as April 11, 1911, the Supreme Court has reaffirmed the doctrine of the cases heretofore mentioned. Metallic Gold Mining Co. v. Watson, 51 Colo. 278, 117 P. 609. This was another personal injury case. Plaintiff was sent into a drift to make an upraise and stope out the ore which appeared in......
  • Golesh v. Utah Apex Mining Co., 2922
    • United States
    • Supreme Court of Utah
    • 30 Diciembre 1916
    ...347, 120 N.Y.S. 895; Knorpp v. Wagner, 195 Mo. 637, 93 S.W. 961; Hencke v. Ellis, 110 Wis. 532, 86 N.W. 171; Metallic G. M. Co. v. Watson, 51 Colo. 278, 117 P. 609, Ann. Cas. 1913A, 1276; Thurman v. Pittsburg, etc., Co., 41 Mont. 141, 108 P. 588; Rohrabacher v. Woodard, 124 Mich. 125, 82 N.......
  • Request a trial to view additional results

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