Nelson v. Bos. & M. Consol. Copper & Silver Mining Co.

• Decision Date: 20 February 1907
• Citation: 35 Mont. 223
• Court: Montana Supreme Court
• Parties: NELSON v. BOSTON & M. CONSOL. COPPER & SILVER MINING CO.

35 Mont. 223

NELSON

v.BOSTON & M. CONSOL. COPPER & SILVER MINING CO.

Supreme Court of Montana.

Feb. 20, 1907.

Appeal from District Court, Silver Bow County; Jno. B. McClernan, Judge.

Action by John Nelson against the Boston & Montana Consolidated Copper & Silver Mining Company. Judgment for defendant. Plaintiff appeals. Affirmed.

John A. Smith and Maury & Hogevoll, for appellant.

Forbis & Evans and J. L. Wines, for respondent.

SMITH, J.

This is an action to recover damages for personal injuries sustained by plaintiff while in the employ of the defendant company, as a shoveler in one of its mines, in Silver Bow county. The breach of duty complained of by the plaintiff was the failure of the defendant to exercise ordinary care in providing him with a reasonably safe place in which to work. He alleges that the injury he received was occasioned by no fault of his own. Defendant answered, putting in issue the material allegations of the complaint, and pleading affirmatively that plaintiff knew the dangerous character of the work in which he was engaged, and assumed the risks incident thereto. There was no affirmative plea of contributory negligence. The reply denied the affirmative allegations of the answer. The cause was tried before the district court of Silver Bow county sitting with a jury, and a verdict was had in favor of the defendant company. From a judgment on this verdict, and from an order denying him a new trial, plaintiff has perfected his appeal to this court.

There is no question, under the testimony, that plaintiff was injured by reason of a large rock or boulder falling upon him while he was at work in the mine. The place of the accident was in a regular stope where ore was being extracted daily. Just before plaintiff was hurt, the miners had set off blasts. Plaintiff and a fellow shoveler went in to shovel and clean up the loose rock that had resulted from the blasts. Plaintiff testified: “I should judge I was shoveling about a month. At the time of the accident I was shoveling dirt in the chute, and was to pick down this boulder and break it up into small pieces so they would go in the chute.”

Plaintiff complains of instruction No. 5, which is as follows: “If the defendant did not know, and with reasonable care and caution could not have discovered, the danger through which John Nelson was injured, then the defendant is not liable to the plaintiff on account thereof. The rule which requires the employer to use reasonable care in providing a safe place to work does not require that the employer shall guard against every possible contingency, but only such as are probable or likely to occur.” He says it “omits the multitude of cases of liability where the company did not know of the danger and could not have discovered the danger, but where a competent inspector would always expect danger ordinarily existent.” This objection is specific. Plaintiff complains that the jury were not advised as to a duty on the part of defendant company to provide competent inspectors. Whether or not reasonable care on the part of the defendant company included the employment of inspectors was a question to be determined at the trial, and, if the plaintiff relied upon such contention, it was the duty of his counsel to request an instruction covering the point, in case the evidence warranted such instruction. It was not the duty of the court to do so of its own motion, because instruction No. 5, in general terms, covers the question of reasonable care.

Regarding instruction No. 9 plaintiff says: “We complain of the word ‘naturally.”’ We understand this language to mean that plaintiff has some fault to find with the use of the word “naturally” in this instruction, but as he has not argued the matter in his brief, we shall pass it here.

Instructions Nos. 11 and 15 are as follows:

“No. 11. You are further instructed that the plaintiff, John Nelson, must be held to have learned, and to have known whatever a person of ordinary prudence exercising ordinary and usual care would have learned and known, under the circumstances surrounding him in the discharge of the duties of his employment. And, if he did in fact know, or, with the exercise of such ordinary care, could have learned, prior to said accident, the manner in which the work was being performed, and the obvious risks and dangers arising in connection with such work, and if the injury sustained by him resulted from such obvious dangers and risks, then such injury must be regarded as having been sustained through a risk voluntarily assumed by him, and defendant would not be liable on account thereof.”

“No. 15. The law required John Nelson to use his natural faculties. Whatever he might have seen or discovered, exercising reasonable and ordinary care, he is supposed to have known. If he had an opportunity to ascertain whether the ground which fell on him was loose, his duty would not permit him blindly to venture under it without investigation. He was required to use his ordinary senses in places of danger, such as ground which had been recently blasted, and, if he failed to do so, and was injured by reason thereof, he cannot recover, even though you find the defendant had been negligent in not properly securing the ground.”

As to instruction No. 11 plaintiff says: “We complain of the word ‘could.’ It calls for a higher degree of care than the law requires. The test being, we claim, what a man of ordinary care ‘would’ learn.” And he complains of instruction No. 15 in this language: “We make the same complaint against this as against No. 11. The same erroneous idea is expressed in stronger language.” It will be noted that the trial court used the words “would,” “could,” and “might” interchangeably. We do not think, after carefully reading all of the testimony, that the jury were in any way misled by this; nor do we consider it necessary to inquire into the potentialities of these three words. Plaintiff's counsel refers to the jury as the “plain men in the box,” but insists upon their being regarded by this court as a group of lexicographers, philologists, grammarians, and analysts. We do not believe juries should be so treated. Trial by jury was gradually evolved, under our system of jurisprudence, for the very purpose of getting the opinions of 12 “peers”-that is, 12 men like the parties interested-upon disputed questions of fact. It is notorious that, in many cases, verdicts are not logical deductions from the testimony, but they reflect the composite judgment of the 12 men in the jury...