Ozark Smelting & Mining Co. v. Silva

• Decision Date: 28 January 1919
• Docket Number: 5124.,5123
• Citation: 255 F. 821
• Parties: OZARK SMELTING & MINING CO. v. SILVA. SAME v. LOPEZ.
• Court: U.S. Court of Appeals — Eighth Circuit

255 F. 821

OZARK SMELTING & MINING CO. v. SILVA.

SAME v. LOPEZ.

Nos. 5123, 5124.

United States Court of Appeals, Eighth Circuit.

January 28, 1919

Reid Hervey & Iden, of Roswell, N.M., and William E. Hutton, of Denver, Colo., for plaintiff in error.

O. A Larrazolo, of Las Vegas, N.M., and J. A. Gillett, of El Paso Tex., for defendants in error.

Before SANBORN, Circuit Judge, and TRIEBER, District Judge.

SANBORN Circuit Judge.

About 5 o'clock in the afternoon of March 16, 1916, Carlos Luas Jr., a young man 20 years of age, and Manuel Antonio Lopez, a youth 17 years of age, employes of the Ozark Smelting & Mining Company, a corporation, were directed by its night foreman to go to chute 802a and shovel ore into it. Chute 802a was from 30 to 50 feet in length. It extended in a line substantially straight at an angle of about 45 degrees from the eighth level of the Ozark Company's mine, where that company was mining ore, to a level below where the ore was loaded into cars to be carried away. There was a door or gate at the lower end of the chute which could be so opened and closed as to permit a carload of ore at a time to run from it into a car. The chute was used to lead the ore from the eighth level to the place of loading it upon the cars. If the chute was full of ore or nearly so, and an employe was at work upon this ore or near the upper end of the chute and the door or gate was opened to load a car, the ore in the upper end of the chute would settle down slowly into the chute, but not in such a way as to endanger the workmen. There were 30 or 40 chutes of this character in this mine; some of them were straight, and some were crooked. Sometimes the ore in one or more of these chutes would form a jam part way down the chute, leaving the lower part of the chute empty, and the company had an employe whose duty it was to break such jams and let the ore down to the gate or door.

At the time the order to shovel ore into chute 802a was given to the young men, the upper end of the chute was full of ore, and it was piled up from 1 1/2 to 2 1/2 feet above its upper portal. The testimony was conflicting whether the natural inference from the fact that the upper end of the chute was full of ore was that it was full from the door or gate at its lower end or that the ore was congested at some point above the door or gate, leaving the lower portion of the chute empty. The upper mouth or portal of the chute was in a stope on the eighth level where the company was taking out ore, and on one or two sides of this mouth the face of the ore in place was so near to it that when the blasting was done some of the ore would roll down into or upon the portal of the chute. Sometimes when the ore became congested in a chute it would suddenly give way and the ore would run down the chute so fast as to swallow up and kill a man working upon the ore in or on the upper end of the chute, or near enough to be drawn into it, as the ore ran down from the sides of the stope above it. This was what happened to Luas and Lopez within an hour or two after they went to shovel coal into the chute. No living witness of the accident remained, but the dead bodies of these young men were taken out of the lower end of the chute during the night. The administrator of the estate of Luas and the administratrix of the estate of Lopez sued the Ozark Company for its alleged failure to exercise reasonable care to furnish a safe place for the deceased to work. The two suits were tried together. At the close of the trial the court denied the motion of the Ozark Company, in each case, to instruct the jury to return a verdict in its favor. It excepted to that ruling. The court held that there was no substantial evidence of any actionable negligence of the defendant, unless in that it failed sufficiently to warn the young men of the danger of working on or too near the ore in or over the upper end of the chute on account of the possibility of a congestion of the ore in the chute and the danger of its carrying them down into it. Thereupon the court charged the jury, and at the request of the Ozark Company submitted to them two questions: First, whether or not the deceased were warned that it was dangerous at all times to work or be upon the ore body immediately above the mouth of the ore chute when the ore in the chute was in a congested condition; and, second, whether or not...