Mountain Copper Co. v. Van Buren

• Decision Date: 19 October 1904
• Docket Number: 1,049.
• Citation: 133 F. 1
• Parties: MOUNTAIN COPPER CO., Limited, v. VAN BUREN et al.
• Court: U.S. Court of Appeals — Ninth Circuit

133 F. 1

MOUNTAIN COPPER CO., Limited, v. VAN BUREN et al.

No. 1,049.

United States Court of Appeals, Ninth Circuit.

October 19, 1904

This is a suit to recover damages for the death of John Van Buren occasioned by the alleged negligence of the plaintiff in error. A brief outline of the in Error to the Circuit Court of the United States for the Northern his is a suit to recover damages for the death of John Van Buren, occasioned general character of some of the facts of this case will be sufficient to illustrate the points raised by the assignment of error:

The defendants in error are the sole heirs at law of John Van Buren, deceased, to wit, his widow and three children. About February 10, 1900, John Van Buren went to Iron Mountain, in Shasta county, and sought employment with the Mountain Copper Company, the plaintiff in error herein. He had no experience as a miner, but was a bridge carpenter. He was engaged by the corporation as a carpenter, but was first put to work in the rock quarry. After he had worked there a few days he was ordered by the foreman in charge of the work to go to work as a mucker in the mine. (A mucker is one who, after the ore or muck has been mined by the miners, shovels it into cars, and then moves it out to the surface of the mine.) He first declined to go to work in the mine, on account of his inexperience in such work. His foreman told him he would have to go to work in the mine, or quit work. He continued working in the mine as a mucker.

The mine of the Mountain Copper Company is not a vein or ledge of mineral-bearing rock or ore in place, but is a large lenticular mass of ore, and is mined by drifting or tunneling into the ore body from the mountain side, and stoping out the ore in large chambers or sections. The superintendent of the plaintiff in error at the time of the death of Van Buren testified that: 'The shape of the deposit I can like to the hull of a ship, with the prow point to the south, and the west side of the mass flatter or at less pitch than the east side.'

On February 28, 1900, about 12 o'clock p.m., or early in the morning of March 1st, a cave occurred in the mine. Several workmen, including Van Buren, were killed. Some idea of the extent of this cave is gleaned from the testimony of witnesses that it took from 12 to 14 days to recover the bodies. The cave occurred in what was known as stope 4 in the Cooper level. At the time of this accident the mine consisted of three open-up levels, known as the Fielding, the Copper, and the Peck levels. The Fielding was the lowest level of the three; the next level was the Copper level; above that, the Peck level. The distance between the top of the Fielding level and the bottom of the Peck level was 38 feet, and the distance between the top of the Copper level and the bottom of the peck level was 14 feet, at the place where the accident occurred.

Counsel for the plaintiff in error, in his brief, epitomizes the method of working the mine, as shown by the testimony of its witnesses, as follows: 'The system under which the mine of plaintiff in error was worked was peculiar. Going in upon any given level, a drift was run into the ore body; and working forward from this drift as a base, the ore was stoped out along and side of the drift. The drift was timbered up to the roof, bracing the roof, and then as the miners worked forward, stoping out the ore, the timbering was advanced towards the face of the stope; the ground back of the point at which the ore was being extracted being filled in between the timbering with country rock; this filling in, together with the timbering, supporting the weight of the mountain above; room at all times being allowed for mining and mucking in the fact of the stope. The timbering was in square sets. As the ore was stoped out these sets of timbers were advanced towards the face of the stope, and, whenever sufficient room was obtained, complete sets were put in. In the meantime timbers were projected from over the completed sets, resting upon the edge of such sets, and at the back end against the roof of the mine; extending out over the place where the miners were working, to protect them as much as possible from loose and falling rock.'

The trial of the case before a jury resulted in a verdict in favor of the defendants in error for the sum of $6,750. The plaintiff in error seeks a review in this court, and makes 26 assignments of error, which may be classified under four different heads: (1) That the court erred in refusing to direct the jury to render a verdict in favor of the defendant; (2) that the court erred in refusing to give instructions (nine in number) requested by defendant's counsel; (3) that the court erred in instructing the jury (four instructions); (4) that the court erred in sustaining objections (eight in number) of plaintiff to certain questions asked witnesses by defendant.

Van Ness & Redman, for plaintiff in error.

Geo. O. Perry and Campbell, Metson & Campbell, for defendants in error.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

HAWLEY District Judge (after making the foregoing statement).

1. Did the court err in refusing to instruct the jury to find for the defendant in the court below (plaintiff in error here)?

The arguments of counsel upon this point cluster around the proposition as to whether or not there is any evidence in the record showing or tending to show any negligence on the part of plaintiff in error; the contention of the defendants in error being that the evidence shows that the cave occurred by reason of the insufficient and negligent timbering of the mine by the plaintiff in error, and its failure to take the necessary precaution to protect the workmen therein, or to take any reasonable steps to secure their safety; the contention on the part of the plaintiff in error being that the mine was properly timbered; that the cave occurred, or might have occurred, by what is called by its witnesses a 'side thrust,' without any fault or negligence or want of reasonable care or precaution on its part to secure the safety of its employes. These contentions call for a brief review of the testimony offered by the respective parties upon this point. The defendants in error introduced witnesses who testified, among other things, as follows:

Nickerson testified that he worked in stope 4 of the Copper level with Van Buren and others; that he quit working before the accident because he was hit in the head with a rock that came out of the timbers from above; that he heard rocks fall on the lagging; that he could see the roof 25 or 30 feet from the bottom, 12 feet above the height of the timbers; that there was an open space above the timbers of about 12 feet.

Anderson testified that he worked in stope 4, at the point where the cave occurred, a few days before the accident; that 'the last morning I worked there I observed rocks dropping from the roof or back of the stope. Some of the rocks struck the timbers and the lagging, and some of them fell out in the ground. The stope was not timbered up to the roof. * * * During the time I worked there, there was a considerable cave from the roof or back of the stope.'

Fayle testified that he worked in the Copper level on February 28th, when Paul Edwards, the shift boss of the plaintiff in error, took the men out to wait until the ground quit settling. 'Rocks fell there that night from the place where it had caved the day before where I was working. There must have been fifty or sixty cars in the cave of the day before. The timbermen that day put in a false set there to protect the muckers from the falling rock. * * * The Oats boys timbered in there that night. They were working there at the time of the accident, and were killed. * * * I worked there until about 10 o'clock, when Paul Edwards, shift boss, called us out. It quit settling then, and Paul Edwards said he thought it was all right, and we all went back to work. I quit there then because I thought the place looked dangerous. I told Paul Edwards I didn't want any more of that, and he said I could go over and work in line 3. When I left, the Oats boys were starting in to lag up over the sets they had put in.'

Pemberthy testified That he was familiar with all branches of mining. That he understood timbering, stoping, and blasting; that he was working in the stope on the Copper level 'at the time of the cave in which eight men were killed. * * * I was in sight of the men who were working in the stope, and who were afterwards killed. I could see them that night. I was working there at the time of the cave. The material that came down fell where I was working, after I got out. ' That he had helped to open all the stopes in question. That he had made an examination of the timbers on the night of the accident and gave a minute description of how the timbering was done, and said there was lots of open ground above the timbers. That he was 6 feet 1 1/2 inches tall, 'and could stand on top of those timbers without stopping, and my head did not touch the roof. That 'the timbering that was in there, and on top of which and between which and the roof there was no cribbing, did not serve any purpose at all in holding up the roof. * * * I saw rock falling the night of the accident, before the cave. A piece dropped down as big as my head every once in a while, and once in a while a car load would drop down. It would come down in broken pieces. ' During the course of his testimony the following questions and answers appear: 'Q. by Mr. Perry: From what you have seen and know of the mine at the time the accident occurred, on the morning of the 1st of March, 1900, would you say that that portion of stope 4 where these men were working was in a safe condition...