Monson v. La France Copper Co.
| Citation | 101 P. 243,39 Mont. 50 |
| Parties | MONSON v. LA FRANCE COPPER CO. et al. |
| Decision Date | 24 April 1909 |
| Court | United States State Supreme Court of Montana |
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.
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 employment as 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 the requirements of the statute as to bonnet and sheathing. The doors were hung on hinges, and so adjusted that, when the cages were not in actual use for lowering and hoisting men during the changes of shifts, they could readily be taken off and set aside, and this was done whenever the cages were used in hoisting ore or waste or lowering timbers and other material. Each cage was also furnished on each deck with a handbar, which passes across it overhead. This was used as a handhold by the miners while the cage was in motion. The company usually had an employé called a "topman," whose duty it was to put the doors on when a cage was in use by the men, and also to see that they were securely latched or locked before the cage was moved. At each station where men got on and off there was a station tender to open and close the doors. The superintendent, the engineers, and foremen, when engaged in inspection or similar duties, commonly used the cages without the doors or other device for protection, depending for safety on the handbar alone. The same course was pursued by the timbermen when they would be engaged in lowering timbers. The deceased was working on night shift. One pump was installed at the station at the 1,400-foot level. This was used to raise the water up to the 600-foot level to a tank installed there; thence it was pumped to the surface by a second pump, which was operated from that station. These two pumps were kept at work alternately, each for four hours during the shift. The deceased went on shift at 11 o'clock in the evening. After changing his clothes in the dry room, he asked the engineer in charge of the hoist to lower him to the 1,400-foot level. Neither the topman nor the station tender was usually on duty at that hour. Neither was on duty at this time. The pumpmen were expected to put the doors on a cage when they wished to use it. Usually they omitted to do this, relying for protection on the handbar. The deceased never stopped to put them on even when he took the plaintiff or her friends with him to visit the mine, which he frequently did. He did not put them on at this time. After starting to get into the cage on this evening, he turned back and handed the engineer $15 in bills, saying: Then, upon turning away, he looked back, saying: The witness stated that other employés at the mine had at other times left their money with him because there was danger of getting it wet while at work. He thought deceased was joking when he made the last remark. At this time the face of deceased appeared unusually pale. He used the upper deck of the cage. There is nothing in the record to show what he did after the engineer let him off at the lower pumping station, until some time after 2 o'clock the next morning. In the meantime the cage had been brought to the surface, but had not been used, nor had the doors been put on. Upon a signal from the 1,400-foot level, the engineer returned the cage. Immediately afterwards he received a signal to hoist to the 600-foot level. This he did, setting the upper deck at the station. He observed no jar or irregularity in the movement of the cage during its ascent; it being, as he stated, so heavy that impact against some solid body was necessary to produce a perceptible jar while it was in motion. The cage not being released as the engineer expected, he feared that something was wrong; so he requested two miners who had just come to the surface by the other working compartment to make an inspection. They took the cage by which they had been hoisted and descended to the 600-foot level, where they found the other cage standing as the engineer had placed it. Searching as they descended from that level, they finally found Monson's body at a point about 60 feet from the 1,400-foot level, stretched across the compartment through which he had been sent down, his head and shoulders resting on one of the dividers on one side, and his feet in the same position on the opposite side, while the hips were resting on or against one of the wall plates. Its position was such that a cage could not pass it. To use the language of one of the witnesses who found the body: The face was bruised and cut, but there were no broken bones and no evidence of any other wound. No blood was found except upon the divider, upon which his head rested. The lunch basket of the deceased was found in the cage. There is no evidence whether any cut or bruise upon the face was mortal. During the early evening, before Monson went to work, he attended the theater with plaintiff. While there he remarked twice to plaintif...
To continue reading
Request your trial