Ohio Copper Mining Co. v. Hutchings

• Decision Date: 30 June 1909
• Docket Number: 2,745.
• Citation: 172 F. 201
• Parties: OHIO COPPER MINING CO. v. HUTCHINGS et al.
• Court: U.S. Court of Appeals — Eighth Circuit

172 F. 201

OHIO COPPER MINING CO. v. HUTCHINGS et al.

No. 2,745.

United States Court of Appeals, Eighth Circuit.

June 30, 1909

C. S Varian, for plaintiff in error.

T Marioneaux (O. W. Powers, on the brief), for defendants in error.

Before HOOK and ADAMS, Circuit Judges, and PHILIPS, District Judge.

HOOK Circuit Judge.

The widow and children of Willard Hutchings, deceased, recovered a judgment against the Ohio Copper Mining Company for damages sustained by his death, alleged to have been caused by its negligence. The company says the trial court erred in (1) refusing its request for a directed verdict; (2) admitting a deposition of Hutchings taken in his lifetime as in perpetuam rei memoriam; and (3) admitting certain testimony of two witnesses.

There was substantial evidence of the following facts: The deceased was in the service of the company, which was engaged in mining in Bingham Canyon, Utah. The accident which resulted in his death occurred near the end or face of a drift at the 300-foot level. Owing to the unstable and treacherous character of the formation in that part of the mine, it was necessary, and it was the custom of the company, to follow up closely the extension of the drift with wooden frames or sets made of stout timbers or stulls and covered with slabs or lagging. The frames were about six feet in height and width and a succession of them, when covered, made an entry along which the employes could move in the performance of their duties and be protected from rock and earth falling from above. The duty to construct these frames had been intrusted by the company to employes called 'timbermen.'

The miners, of whom the deceased was one, besides pursuing their ordinary duties in driving forward the face of the drift, also prepared the floor for the sills of the frames above referred to. While engaged in this latter work they were necessarily outside of the protection of the covered passage; and it was the duty and custom of the company, through its timbermen, to protect the miners while so engaged by placing headboards against the dangerous places above and by bracing them with stulls. The roof or hanging wall of the drift, from which the danger proceeded, ran at an angle of about 45 degrees to the plane of the floor. The deceased was on the night shift. While he was at work preparing the floor for the sills of a frame near the face of the drift, several tons of rock fell from the hanging wall and inflicted injuries which finally caused his death.

The night before this accident some rock had fallen and scared the men out, and this had been reported to a foreman charged with the duty of directing and superintending the timbering in the mine, and who was a vice principal, not a fellow servant, of the miners. On the night of the accident the deceased told the foreman he did not want to go in there; but the foreman said he had had it fixed up, and it was all right and safe enough. Relying upon this assurance, the deceased went to work, with the result mentioned. There was testimony that, instead of bracing headboards against the dangerous place on the hanging wall with stout stulls or timbers, a single headboard was used and the bracing was done by a single slab, clearly insufficient for the purpose. There was a conflict of evidence upon this subject, but we think there was proof tending to support the claim of the plaintiffs so substantial that the trial court would not have been justified in directing a verdict for the company. The specific negligence upon which recovery was had was that of the foreman in making the representation to induce the deceased to go to work.

It is also urged that the evidence disclosed an assumption of the risk by the deceased. We do not think so. The place was dark, save as it was illumined by an ordinary candle, which it was the custom of the miner to place on a ledge or niche in the wall of the drift. The bracing that had been done was above him, and was doubtless indistinct. Had he observed it in the gloom, it is questionable he could have told without particular inspection whether headboards had been properly placed, and, if so, whether braced by stull or slab. He knew that, unprotected, the place was dangerous; but he also knew that men in another branch of the service were specially charged with the duty of safeguarding it, and he was entitled to rely upon the representation of performance of that duty made by a superior who spoke for his employer, unless its untruthfulness was manifest. It was not incumbent on the deceased to make effort or take care to discover whether the assurance of safe condition given him was true, and we are unable to say that the insufficiency of the precautions adopted were so patent as to be readily observable by him. In such a situation there is no assumption of the risk. Kirkpatrick v. Railroad, 159 F. 855, 87 C.C.A. 35; M., K. & T. Ry. Co. v. Wilhoit, 160 F. 440, 87 C.C.A. 401; Chicago, M. & St. P. Ry. Co. v. Donovan, 160 F. 826, 37 C.C.A. 600; Chicago Great Western Ry. Co. v. McDonough, 161 F. 657, 88 C.C.A. 517; Federal Lead Co. v. Swyers, 161 F. 687, 88 C.C.A. 547; Western Inv. Co. v. McFarland (C.C.A.) 166 F. 76; United States Smelting Co. v. Parry (C.C.A.) 166 F. 407.

While Hutchings was in a hospital, not expected to live, his deposition was taken in a proceeding instituted by his wife on behalf of herself and their minor children under a Utah statute providing for the perpetuation of testimony. After his death the widow and children brought their action in a state court, whence it was removed to the Circuit Court on the application of the...