Moon-Anchor Consol. Gold Mines v. Hopkins

• Citation: 111 F. 298
• Decision Date: 14 October 1901
• Docket Number: 1,479.
• Parties: MOON-ANCHOR CONSOL. GOLD MINES, Limited, v. HOPKINS.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

111 F. 298

MOON-ANCHOR CONSOL. GOLD MINES, Limited, v. HOPKINS.

No. 1,479.

United States Court of Appeals, Eighth Circuit.

October 14, 1901

O. L Dines (Tyson S. Dines and Elmer E. Whitted, on the brief) for plaintiff in error.

W. O Temple, F. P. Crews, and B. F. Montgomery, for defendant in error.

This suit was instituted by Mary A. Hopkins, the defendant in error against the Moon-Anchor Consolidated Gold Mines Limited, plaintiff in error, to recover damages under the statute of Colorado for the death of her son Phineas Hopkins, alleged to have been caused by the wrongful act of the defendant. It is charged that in March, 1899, the defendant, a mining corporation, was engaged in excavating a pumping station or chamber at the sixth level of its mine, in ground liable to cave in unless supported by proper timbers; that deceased was working for defendant in the capacity of a trammer (that is, operating a car for the purpose of carrying away the loose rock and debris that might result from the excavating processes, along the drift to the elevated shaft of the mine); that while so engaged he was struck by loose and falling rock from overhead and instantly killed. The specific negligence charged against defendant corporation is that it knowingly failed and omitted to properly secure or timber the roof of the excavation so as to make it safe for employes working under it. This alleged negligence was denied by defendant, and further defenses were interposed: (1) That the risks and dangers which caused the death of plaintiff's son were necessarily incident to his employment, and were assumed by him; (2) that the station in question was at the time of his injury and death undergoing necessary repairs, and that all dangers incident to the place of work were obvious and known to him. The plaintiff at the trial introduced her evidence, and at its conclusion defendant moved the court to direct a verdict in its favor. The court declined to do so, and defendant, after saving proper exceptions, elected to introduce no evidence, but to stand on the case made by plaintiff. There were a verdict and judgment for plaintiff. Numerous errors were assigned, but the one chiefly relied on in argument, and which alone needs consideration at our hands, is that the court erred in not directing a verdict for the defendant.

Before SANBORN and THAYER, Circuit Judges, and ADAMS, District Judge.

ADAMS District Judge, after stating the case as above, .

The only question to be answered on this writ of error is whether there was any substantial evidence to support the verdict as rendered.

The uncontradicted facts of the case are substantially as follows: The deceased, although a minor, had passed his twentieth year, and was in full possession of well-developed faculties of body and mind. He had been at work as a trammer at the sixth level of defendant's mine for a period of four weeks or more, during which time defendant had been engaged in excavating the pumping station in question. He had witnessed and participated in the work from the beginning. During this time the narrow drift which run out from the shaft had been widened and extended so as to constitute a room of about 30 feet by 50 feet in dimensions. Prior to March 18, 1899, the work of excavating the pump station had progressed so far that it had then nearly reached the lateral dimensions intended for it, but had not been excavated to the height required. Occasionally during the progress of this excavation prior to March 18th rock had fallen from the roof, but there had been no substantial caving. During the progress of the work a supporting pillar of earth and rock, 8 or 10 feet in dimensions, had been left to support the roof of the station. On March 18th this pillar was cut or shot out. This occasioned a serious cave-in or dropping of a large amount of rock from the roof of the station to the floor, and necessarily stopped such further excavation as was necessary to complete the room as originally intended. Immediately thereafter all excavating work, except such as was necessary to permit timbers to be put in place, was stopped; and from that day until the day of the accident, which occurred 10 or 11 days thereafter, all work was directed to removing the fallen rock and debris, and timbering the roof of the station to prevent further falling of the same. The defendant began the work of timbering at that portion of the station nearest the shaft, and progressed outward towards the further end of the station. This was done to permit the workmen, after the first timbers had been put in place, to do the further work of removing the fallen and falling rock under the protection of supporting timbers. While this work was progressing, rock frequently fell from various parts of the roof of the station which remained untimbered. The work of removing the rock and debris and securing the roof with timbers continued uninterruptedly from March 18th to March 28th. During all this time plaintiff's son worked with the other men in the common purpose of cleaning out the chamber and putting it into a safe condition. The physical facts, as well as the undisputed testimony of the witnesses, in our opinion, clearly show that he was fully aware of the changed situation resulting from the cave-in of March 18th and of the character of the work and the dangers incident to it which ensued thereafter. The defendant on or before March 28th had provided hooks with long iron handles to be used by the workmen in pulling rock which had fallen outside of the screening of the timbers back underneath the same. On the morning of March 29th the midnight shift, as it was called, including the deceased, came on duty, and went down to the station to work. They were shown the hooks which had been provided, and told not to go beyond that portion of the station over which the timbers had been placed; the foreman designating the same as the 'dead line.' The deceased went to a point in the station under the timbers, safely inside the dead line. He had a rope in his hand, and had just made a remark to the effect that he would lasso some of the loose rock lying outside, when a large rock fell from the rook of the station just outside the timbering, to the ground below, struck on a pile of rock formed by a cave-in of the night before, was deflected under the timbers and crushed the deceased, causing his death. A critical reading of all the evidence discloses no substantial fault or want of due care on the part of the defendant in conducting the work after the cave-in of March 18th. The trial court ruled out all evidence tending to show negligence in the manner of excavating the chamber prior to March 18th; but notwithstanding such ruling the facts and circumstances suggested by questions propounded to the witnesses, and appearing in the description of the locus in quo, tended to show that the defendant had not employed ordinary care in the excavation of the station prior to March 18th. Excavating so large a cavity without supporting the roof otherwise than by leaving one pillar of earth and rock, and subsequently cutting out that pillar without making adequate provision to prevent a cave-in, were circumstances which might have justified a recovery on the ground of negligence if any one had been injured by the cave-in of March 18th. It is upon evidence of this character, unavoidably permeating the record, although ruled out as incompetent by the court, that plaintiff's counsel rely in argument and brief to establish the requisite negligence on the part of the defendant. Without pointing out any substantial acts of negligence-- any want of ordinary care-- in the conduct of the work in hand after March 18th, counsel for plaintiff say in their brief and argument:

'It is true that the sole question of negligence submitted to the jury by the instructions of the court was whether the defendant company, after the cave-in of March 18th, proceeded with reasonable diligence, and as a reasonably careful person would have done under the circumstances, to timber the station for the purpose of making it as safe as it reasonably could be made under the circumstances. But the negligence of the defendant in suffering its premises to become dangerous is a factor which is conspicuous in the record in this case. It was an element which the jury doubtless did consider, and which they had a right to consider, notwithstanding the court's instructions, and we have a right to rely upon this fact in support of the verdict.'

For two satisfactory reasons, we cannot agree with counsel. In the first place, the case was not tried on any such theory and defendant had no opportunity to meet any such issue, and no such issue was in point of fact tried. The learned judge who sat at the trial of the case charged the jury as follows:

'There is no testimony in this case showing that the defendant was negligent in making the original excavation in the manner in which it did. * * * (All testimony to that effect having been ruled out by the court.) That question, however, could not affect the question of the liability of the defendant, as it is clearly shown by the evidence that the original excavation was not the proximate cause of the injury, and it could not be held to be liable in this case even if in that portion of the work it had been negligent. On the 18th of March, several days before this accident occurred, several tons of rock fell from the roof of the excavation, thereby demonstrating that the premises were dangerous; and these men were engaged at the time of this accident in endeavoring to make a dangerous place safe. The question, therefore, is whether or not the defendant used ordinary care in providing a reasonably safe working place for the deceased,

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