Miller v. Utah Consol. Mining Co.

• Decision Date: 11 February 1919
• Docket Number: 3261
• Citation: 53 Utah 366,178 P. 771
• Court: Utah Supreme Court
• Parties: MILLER v. UTAH CONSOL. MINING CO. et al

178 P. 771

53 Utah 366

MILLER v. UTAH CONSOL. MINING CO. et al

No. 3261

Supreme Court of Utah

February 11, 1919

Appeal from the District Court of Salt Lake County, Third District Hon. Wm. H. Bramel, Judge.

Action by Mike Miller against the Utah Consolidated Mining Company and others.

Motion for nonsuit was granted as to the unnamed defendants, and from the judgment for plaintiff against it the named defendant appeals.

AFFIRMED.

King Straub, Nibley & Leatherwood for appellant.

Willard Hanson and Shirley P. Jones for respondent.

CORFMAN C. J. FRICK, WEBER, GIDEON, and THURMAN, JJ., concur.

OPINION

CORFMAN, C. J.

This was an action brought to recover damages alleged to have been sustained through negligence while plaintiff was rendering services as an employee in the mine of defendant Utah Consolidated Mining Company. The complaint, in substance, alleged that on September 20, 1916, plaintiff was employed as a mucker to work in defendant company's Highland Boy mine at Bingham Canyon, Utah, of which the defendant Nelson was the foreman, and the defendant Winther the superintendent, who supervised and directed plaintiff in his work; that on said day the plaintiff was directed to go to a certain stope known as stope 12-3g, on the 1,200 level of said mine, and work therein; that while so engaged large quantities of rock and material fell from the roof and sides of said stope and injured plaintiff; that it was the duty of defendants to inspect the said stope, and that not to do so rendered it dangerous and unsafe, of which the defendants had knowledge, but the plaintiff had no knowledge; that the rock and ground at the sides and roof of the said stope were loose and liable to fall; and that the defendants had neglected to inspect the same, and had failed to pick down the loose rock and earth, or to warn the plaintiff of danger, as was their duty. The answer admitted the employment of the plaintiff, and that Nelson was the foreman and Winther was the superintendent of the mine; denied the other allegations of the complaint; and affirmatively pleaded contributory negligence, assumption of risk, and that the injury to plaintiff, if any, was occasioned by the negligence of a fellow servant.

At the trial testimony was given tending to show the following facts:

On September 20, 1916, plaintiff was employed to work in defendant company's mine at Bingham Canyon. He was directed to work as a miner or machineman in stope 12-3g on the 1,200 level, under supervision of the defendant Nelson as foreman, and the defendant Winther as superintendent. Plaintiff had never been in the mine before, and the accident occurred within thirty minutes after plaintiff entered the said stope where he was directed to work. Two shifts were working in this stope, a night shift and a day shift. Plaintiff was on the day shift. This shift consisted of plaintiff as miner or machineman, and his helper, a mucker, a trammer, and one Kordich, a special timberman, with his helper. The stope was about seven sets high and two sets wide. Six sets were timbered. The seventh set had not been put in. When Kordich, the timberman, entered the stope on the morning of the day of the accident the night shift, after drilling and blasting, had made room for a set of timbers to be put in on the seventh set. Before placing the timbers in the seventh set the timberman found it would be necessary to take down a boulder near the tenant of one of the posts. The plaintiff was then working with a machine in the sixth set, doing the work of a miner below the timberman. The timberman first endeavored to pick the boulder down from the face of the roof of the stope and was unable to do so. Chestnut, the stope boss, appeared, and his attention was called to the boulder and the necessity of blasting was mentioned. The timberman expressed some fear that much other material might come down in blasting. The stope boss replied: "Blast it. If it comes, let it come." Thereupon powder was procured and placed in seams about the boulder, and the timberman and his helper withdrew, at the same time warning the plaintiff, and all went to a nearby place of safety while the shot was fired. After the explosion plaintiff returned to his place of work on the sixth set, and the timberman returned to the seventh set, again inspected the face of the stope, and discovered that there was still another boulder near the roof which prevented the placing of the timbers. There is evidence to show that the shift boss again appeared at the seventh set when his attention was called to this boulder. It was suggested the boulder might stay and would not fall until after the timbers were put in. Before the timbers could be put in some chipping out of the material about the boulder was found necessary. As the shift boss left the stope he directed the plaintiff to let the timberman have the machine if he wanted it. The timberman had proceeded to pick down the loose rock and material preparatory to putting up the timbers. Lagging had been placed so as to catch the loose material and prevent its falling on those beneath. Timbers were brought up from below by the timberman and set up, but it was still found that it would be necessary to remove some material before caps could be placed in the timbers. The plaintiff was now at work as before stated on the sixth set below, drilling holes with his machine. The timberman called to the plaintiff to bring him the machine. The plaintiff then proceeded to take the machine up the ladder from the sixth to the seventh set, where the timberman was intending to use the machine in chipping material about the boulder. As to whether the timberman actually used the machine the testimony is not clear. Some of the testimony tends to show the plaintiff handed the machine to the timberman, and the timberman proceeded to do some chipping about the boulder before the roof caved, while other testimony shows that the cave came just at the time or immediately after the machine was handed to the timberman by the plaintiff. Anyway, within a very short time a large quantity of earth and rock fell from the roof, and occasioned the injuries to the plaintiff of which he complains. The plaintiff testified that he had never been on the seventh set until called there by the timberman; that he knew nothing concerning the roof of the stope, and that at his place of work he could not see the conditions on the seventh set, where the timberman was working. There is also testimony in the record tending to show that the plaintiff was, on the evening before, first employed as a mucker, but on being taken to the mine in the morning he was directed to and did work as a miner operating a Waugh drilling machine without any protest. The testimony also shows that it was the custom in defendant company's mine, as well as in other mines in Bingham Canyon, for the miner to do his own timbering at the place in which he was working, and that in defendant company's mine an ample supply of timbers was to be had for that purpose.

Trial was to a jury, and a verdict was returned in plaintiff's favor against the defendant company, upon which judgment was entered accordingly.

At the conclusion of plaintiff's testimony defendants moved for a nonsuit, which was granted as to the defendants Nelson and Winther, but denied as to the defendant mining company. The mining company also moved for a directed verdict and a new trial. Both were denied. Defendant mining company appeals.

The principal assignments of error argued and relied upon by appellant's go to the rulings of the trial court in denying the appellant's motion for nonsuit, the refusal to direct a verdict for appellant, and exceptions taken to the charge given the jury, and exceptions to the refusal to charge as requested by appellant.

It is first contended that there was no proof of negligence on the part of appellant; that the evidence conclusively shows that the face of the stope, in the usual and ordinary course of mining, was left open or exposed by the night shift; that immediately after the day shift came into the stope the roof of the stope was inspected by both the timberman and the shift boss, and the rock and material that afterwards caved and injured the plaintiff was, as shown by the testimony, not likely to fall before timbers on the seventh set could be put in place. In other words, if we correctly understand the contention of appellant it is that, first, the roof was properly and seasonably inspected, and in the judgment of a competent and experienced timberman and a shift boss was thought to be reasonably safe; secondly, that in practical mining some time must necessarily elapse between the breaking down of the face of a stope and the putting up of timbers when there can be no support for the roof or face of the stope, and therefore it follows, if ordinary care and diligence are exercised in the inspection, and timbering follows in seasonable time, no negligence can be attributable to the master if the roof falls and injures the servant working as a miner in the stope while an effort is thus being made to make a place safe. Counsel have cited a number of cases in this connection announcing that the familiar rule that the master must use reasonable care and diligence to furnish his servant a reasonably safe place to work has no application to a place where the work being prosecuted is for the purpose of making a dangerous place safe, or where the work being done gives rise to constant change of conditions. Among the numerous cases cited are the decisions of this court, Fritz v. Electric L. Co., 18 Utah 493, 56 P. 90, and Golesh v. Utah Apex Min. Co., 49 Utah 232, 162 P. 369. We will not pause to discuss the cases cited; for, as we think, all of...