Monson v. La France Copper Co.

• Decision Date: 24 April 1909
• Parties: MONSON v. LA FRANCE COPPER CO. et al.
• Court: Montana Supreme Court

39 Mont. 50

MONSON
v.
LA FRANCE COPPER CO. et al.

Supreme Court of Montana.

April 24, 1909.

Appeal from District Court, Silver Bow County; Geo. M. Bourquin, Judge.

Action by Sadie A. Monson, as administratrix, against the La France Copper Company and others. From a judgment for plaintiff, and from an order denying defendant Copper Company's motion for new trial, it appeals. Reversed.

Chas. R. Leonard and Gunn & Rasch, for appellant.

Breen & Hogevoll, for respondent.

BRANTLY, C. J.

Action by plaintiff, as administratrix of the estate of John Monson, her deceased husband, for damages on account of his death in the course of his employmentas a pumpman by the defendant corporation in one of its mines in Silver Bow county. In the complaint F. Augustus Heinze, the manager of the corporation, William A. Kidney, the superintendent of the mine, and Albert Frank, employed as mining engineer, are joined with the corporation as defendants. Defendant Heinze was never served with summons. During the trial the action was dismissed as to defendants Frank and Kidney, and thereafter it proceeded against the corporation alone. As to this defendant, it is alleged that at the time of the death of plaintiff's intestate it was engaged in operating the Lexington mine in Silver Bow county; that there is a vertical shaft in said mine to the depth of 1,400 feet, in which cages were used for the purpose of lowering and hoisting the employés; that it was the duty of the defendant to provide these cages with doors to prevent the employés from slipping or falling therefrom while they were being lowered or hoisted; and that the defendant failed to perform this duty, with the result that the deceased, while riding in one of the cages in pursuit of his duties as pumpman under the direction of the defendant, fell from it and was killed, to the damage of plaintiff in the sum of $25,000. Judgment is demanded for this amount. The answer, admitting that the defendant was engaged in operating the mine, that there is a vertical shaft therein as alleged, and that the deceased was in its employ at the time of his death, denies generally all the other allegations contained in the complaint. It also alleges affirmatively contributory negligence on the part of the deceased, Monson, and that the risk incident to the use of the cages as alleged was assumed by him. Upon these allegations there was issue by reply. At the close of plaintiff's case in chief defendant moved for a nonsuit, on the ground, among others, that the evidence did not show what was the cause of Monson's death. The motion was denied. When the hearing of the evidence was concluded, motion was made by defendant for a directed verdict. This motion was also denied. The plaintiff had verdict and judgment for $4,000. The defendant has appealed from the judgment and an order denying it a new trial.

The following is a full statement of the evidence submitted to the jury: On January 26, 1908, the defendant was operating the Lexington mine at Butte. The working shaft, 1,400 feet in depth, is vertical and has three compartments. One of these is used for pumps. The other two are provided with doubledecked cages for lowering and hoisting men and materials. The timbering is constructed in the usual way, in sets, consisting of horizontal wall plates and upright corner pieces of 12x12 lumber; the lagging being of two-inch planks. The spaces between the plate timbers or dividers as the witnesses designated them, separating the compartments are open, except that in the working compartments there are upright pieces at each end in the middle, to which are nailed guides for the cages. The sets are about five feet in height. It does not appear definitely what the dimensions of the different compartments are, but the working compartments are of sufficient size to permit the use of cages having doorways in the side of 41 inches, and to allow a space of 2 or 3 inches for the cages to clear the wall plates and foot sills at the various levels. Including this space, the horizontal distance from the cages to the lagging when moving between the wall plates, is 14 or 15 inches. This leaves openings at the sides of the cages, as they pass from plate to plate, of 41 inches in length by 14 or 15 inches in width, being sufficient in dimensions to permit a man to slip or fall out. Just here it may be stated that, to guard against this danger, cages used in vertical shafts of a greater depth than 300 feet or not exclusively for sinking are required by statute (section 8536, Rev. Codes) to be cased in on three sides with sheet iron or steel not less than one-eighth of an inch in thickness, and on the fourth side to be provided with doors or gates of the same material, hung on hinges or adjusted to slide. They are also required to be covered by a substantial iron or steel bonnet, to furnish protection against anything falling from above. The cages in use by the defendant at the time of Monson's death were so constructed as to meet...