Osterholm v. Boston & Montana Consol. Copper & Silver Mining Co.

• Decision Date: 26 February 1910
• Citation: 107 P. 499,40 Mont. 508
• Parties: OSTERHOLM v. BOSTON & MONTANA CONSOL. COPPER & SILVER MINING CO.
• Court: Montana Supreme Court

107 P. 499

40 Mont. 508

OSTERHOLM v. BOSTON & MONTANA CONSOL. COPPER & SILVER MINING CO.

Supreme Court of Montana

February 26, 1910

Appeal from District Court, Silver Bow County; Geo. M. Bourquin Judge.

Action by Charles Osterholm against the Boston & Montana Consolidated Copper & Silver Mining Company. Judgement for plaintiff, and defendant appeals. Reversed and remanded.

Forbis & Evans and Kremer, Sanders & Kremer, for appellant.

Breen & Hogevoll, for respondent.

SMITH. J.

The complaint in this action alleges: That on or about the 18th day of October, 1907, the defendant was operating the Greenleaf mine, in Silver Bow county, by means of a vertical shaft approximately 1,000 feet deep; that the cage in said shaft was without doors or safety gates and was not used for sinking; that on the day mentioned plaintiff was in the employ of the defendant as a miner, and while being hoisted in the cage "the defendant caused this plaintiff to slip through the open cage with no doors," whereby he was permanently injured. The answer alleges: (1) That the cage was used for sinking only, and "the only hoisting and lowering of men that was being done was the hoisting and lowering of men engaged in sinking the shaft, and no other operations were being carried on in the mine"; (2) "that the condition of said cage and its construction was open and visible, and the said plaintiff had been working in said shaft, and had been lowered and hoisted upon said cage, in the condition in which it was when he was injured for several months prior to the accident and knew of the condition and manner of construction of said cage, or in the exercise of reasonable care should have known thereof, and defendant alleges that the danger of being injured, if his feet slipped out of said cage while being hoisted or lowered was an open and obvious risk, and the plaintiff assumed the risk thereof;" (3) contributory negligence of plaintiff (4) that the doors or gates were removed from the cage at the plaintiff's request, and he is therefore estopped to claim any liability on the part of the defendant for failure to maintain the same in place upon the cage; (5) that plaintiff's injury was caused by the negligence of fellow servants in removing the safety doors or gates.

There was no conflict in the testimony as to the manner in which plaintiff was injured. He testified: "I was timbering in the Greenleaf mine. We were putting in the sill for the last set of timbers at the 1,000 station. The tanks were running over on the 800, and the foreman called me to go up with him and see what was the matter. I followed him into the cage and started to ring the bell. The bell rope was wet and hard to ring. As I was ringing the last bell, I slipped and struck my elbow, and it knocked me out until I came within three or four feet of the 800 station, and my leg was in between the wall plate and the cage. I did not see any doors on the cage when I started to work on June 26, 1907, and I certainly would have seen them if there had been any doors there, and there were no doors on the cage when I was hurt. Sinking is straight down in the shaft. I know what is meant by building stations. Sinking is not the same as building stations." He was badly injured; but his physician testified that: "In a couple of years he will be in fairly good shape. His leg will be substantially so recovered that he can perform the duties that he did perform prior to any injuries at all. I think in time it will come to that--what time is difficult to state. I think in two years he will be so he can go about. It is a question if he can go down the mine that soon. He will probably go about without crutches. It is my judgment that long prior to that time he will be able to perform manual labor of some kind."

Shone, the foreman, testified that, after plaintiff pulled the bell rope, he fainted, fell down, and got his leg under the wall plate. "His leg was pulled in right to the knee between the wall plate and the cage. The station in which he was standing when he first went in the cage was on the south side, and his foot got out on the south side."

At the close of the evidence, both parties moved for a directed verdict. The court overruled the defendant's motion, but granted that of the plaintiff, leaving the jury to fix the amount of the recovery. This they did by returning a verdict against the defendant for the sum of $7,500. From a judgment entered upon the verdict and an order denying a new trial, the defendant has appealed. The legal questions presented to this court were all properly raised by motion for nonsuit, objections and exceptions taken at the trial, motion for directed verdict, and requests for instructions.

1. The first complaint is that plaintiff's witness Johnson was allowed, over objection, to answer the following question: "What have you to say as to his [plaintiff's] habit of being a sober and industrious man?" The question was incompetent if designed to bear upon the conduct of plaintiff at the time of the accident. But the witness had already testified that plaintiff was getting $4.50 per day, and, as bearing upon his earning capacity, we think the question was proper. At any rate, the answer was not prejudicial. The witness answered, "He takes a drink, but I never saw him drunk."

2. Our statute relating to safety doors or gates on cages in mines reads as follows: "It is unlawful for any corporation [or person] to sink or work, through any vertical shaft where mining cages are used, to a greater depth than three hundred feet, unless said shaft shall be provided with an iron-bonneted safety cage, to be used in the lowering and hoisting of the employés thereof, said cage to be also provided with sheet iron or steel casing not less than one-eighth inch in diameter; doors to be made of the same material shall be hung on hinges, or may be made to slide, and shall not be less than five feet high from the bottom of the cage, and said door must be closed when lowering or hoisting the men. Provided, that when such cage is used for sinking only, it need not be equipped with such doors as are hereinbefore provided for. The safety apparatus, whether consisting of eccentrics, springs or other device, must be securely fastened to the cage, and must be of sufficient strength to hold the cage loaded at any depth to which the shaft may be sunk. The iron bonnet of the aforesaid cage must be made of boiler sheet iron, of good quality, of at least three-sixteenths of an inch in thickness, and must cover the top of such cage in such manner as to afford the greatest protection to life and limb from anything falling down said shaft. It shall be the duty of the mining inspector and his assistant to see that all cages are kept in compliance with this section and to also see that the safety dogs are kept in good order. Every person or corporation failing to comply with any of the provisions of this section is punishable by a fine of not less than three hundred dollars nor more than one thousand dollars." Section 8536, Rev. Codes.

It is contended by the appellant that the phrase "said door must be closed when lowering or hoisting the men" should be construed so that it shall not be imperative to close the safety door when men engaged in the shaft are riding up or down, but only when the "shifts" of men are being lowered or hoisted at the usual time of changing workmen. Counsel argue that there is uncertainty and ambiguity in the language quoted, and therefore it was their privilege to introduce testimony to explain how the law is usually regarded and interpreted by persons in charge of large mining operations; and they contend that the phrase should be construed by this court in the light of testimony, as to the practical operation of mines and what they claim to have been the reason for employing the words "the men" and failing to specify that the door should be closed whenever any one man was being moved. Such testimony was in fact introduced at the trial. Several mining men of large experience in the mines of Butte and elsewhere, superintendents, foremen, and others, gave evidence to the effect that "lowering and hoisting the men is when the shift is going on or coming off," and that taking one man up or down would not be "hoisting or lowering the men." We have no doubt, from this testimony, that such is the interpretation generally placed upon the law by those in charge of the large mining operations in Silver Bow county, and that such interpretation is an honest and bona fide construction of the law on their part, without any design to evade its provisions, but rather to facilitate its practical operation. Neither have we any doubt that the primary object of the law, and the one foremost in the minds of the legislators who passed it, was to guard against accidents to the men, in a body, when changing works. But we are also satisfied that, in its broader scope, the law was designed to minimize, so far as may be, the possibility of accident or death to miners, at any time, when the presence of doors will prevent it.

We cannot agree with counsel that the terms of the law are ambiguous or uncertain. "Ambiguous" means doubtful and uncertain. But we are of opinion that there is nothing uncertain about this statute, and no doubt of its meaning. If a statute is plain, certain, and unambiguous, so that no doubt arises from its own terms as to its scope and meaning a bare reading suffices; then interpretation is needless. Smith v. Williams, 2 Mont. 195; Jay v. School District, 24 Mont. 219, 61 P. 250; State v. Cudahy Packing Co., 33 Mont. 179, 82 P. 833, 114 Am. St. Rep. 804; 2 Lewis' Sutherland, Statutory Construction (2d Ed.) § 363. This statute commands that the door shall be closed when lowering or...