Poorman Silver Mines of Colorado, Ltd. v. Devling

• Decision Date: 05 June 1905
• Citation: 81 P. 252,34 Colo. 37
• Parties: POORMAN SILVER MINES OF COLORADO, Limited, v. DEVLING.
• Court: Colorado Supreme Court

81 P. 252

34 Colo. 37

POORMAN SILVER MINES OF COLORADO, Limited, v. DEVLING.

Supreme Court of Colorado

June 5, 1905

Appeal from District Court, Boulder County; Campbell, Judge.

Action by Charles Devling against the Poorman Silver Mines of Colorado, Limited. From a judgment for plaintiff, defendant appeals. Reversed.

The injury was caused by the explosion of a 'missed hole' while plaintiff was sinking a winze in defendant's mine. The specific acts of negligence charged in the complaint against the defendants are: (1) That it was guilty of negligence in not furnishing the plaintiff a safe place in which to work; (2) that defendant, through its vice principal, failed to exercise ordinary care to search for missed shots in plaintiff's place of work before directing him to work therein, and that, had defendant exercised such reasonable care, it would have discovered that the hole in question was a missed shot, and not one which had been begun, but not completed, by the previous shift of workmen; (3) had defendant not interfered with plaintiff's usual course of work, and assumed to inspect the place of work for itself, and assured plaintiff of its safety, and directed him to proceed therewith, plaintiff would not have done the work which caused the injury. The defenses were a denial of negligence on the part of defendant, a plea of contributory negligence and an assumption of risk by the plaintiff.

The evidence tended to prove the following facts (indeed, they are admitted, or clearly established): The defendant, a corporation, owned and worked a silver mine in Boulder county. Neil D. McKenzie was its superintendent, and W. H Johns nominally its shift boss, or foreman, but, as plaintiff says, invested with complete control. It was engaged in sinking a winze from the second, to connect with an upraise from the third, level of the mine; the work on both being prosecuted at the same time. The winze was run on an incline through hard rock, all of which required drilling and blasting, and the sinking was done by two shifts--a day shift, composed of plaintiff and another workman; and the night shift, consisting of two other fellow workmen. The plaintiff, a miner of about 21 years' experience, made application for and was engaged to do the work of drilling and blasting in this winze. The manner of doing the work was for each shift to drill three holes and charge the same with sticks of dynamite or other explosive, and when these charges were deposited in the holes made for them and the fuse thereto fixed and lighted the workmen retired to a safe distance, listened for the reports, and remained there until after the explosions occurred. These shots were discharged towards the end of the shift, and, if the number of reports did not correspond to the number of loads, the rule of defendant required the workmen who lighted the fuse to indicate the same by depositing a written notice in a receptacle which was provided by the company for that purpose; and before the succeeding shift began work it was their duty, under the rules of the company, to examine this place to ascertain if all the shots had been discharged. It was also the duty of each shift before beginning to drill and blast to remove the débris left by blasting, and also to examine for themselves to see if there were any 'missed shots' or 'missed holes'; that is, to see if any of the dynamite or explosive material was left in any of the holes previously drilled and filled. On the morning of the accident the plaintiff and his fellow workman Bryant, who constituted the day shift, entered the winze to continue their usual work. Before doing so they examined the receptacle to see if any missed shots were left, and found that the workmen of the previous night shift had not given any notice thereof. The latter testified, and it is not disputed, that they heard three distinct reports in the winze, corresponding to the number of holes they had loaded. Johns, who entered the winze about the same time, directed the workmen not to remove the débris, as usual, before commencing to drill, and instructed them to begin drilling at once, as the company desired speedily to make connection with the upraise, the top of which was then only a few feet distant from the bottom of the winze. The three men observed a drill hole about six inches in depth in a bench above the bottom, and were uncertain whether it was a 'missed hole' or one that the preceding night shift had begun but not finished. Johns thereupon made an examination to ascertain what it was, employing the instrument incommon use for that purpose. According to plaintiff's testimony which is the only evidence in the record upon this question Johns got down on his knees and inserted the pointed end of the instrument in the hole, scraping it out with the spoon end, and did the work carefully. He was engaged in this investigation for about five minutes, and during all the time plaintiff and his fellow workmen were standing a few feet away, with candles in their hands, and watched him while he was doing the work. From his inspection Johns apparently reached the conclusion, and so stated to the plaintiff, that the hole was one which was drilled, and not finished, by the night shift, and he told the plaintiff that it was safe, and directed him to drill the same deeper. The plaintiff says that he himself saw the hole, and it did not look like a missed hole. He states that Johns told him it was safe, and the witness said that he himself thought that it was safe, as he did not think it was a missed hole. After Johns made this examination and gave orders to sink the hole deeper, he left the winze, and did not return. Without removing the débris from the place where it had fallen, plaintiff and his fellow workman first, and for two or three hours, were engaged in drilling a hole in the winze to the usual depth of about 20 inches, at the end of which time they began to sink deeper the hole which Johns had examined in their presence. They had proceeded only a few minutes when an explosion occurred which resulted in serious injury to plaintiff, to recover damages for which this action was brought.

Where the place of work is not permanent or has not been previously prepared by the master as a place for the doing of the work or where the servant is employed to make his own place to work in and the place is the result of the very work for which the servant is employed, or where the place is inherently dangerous and necessarily changes from time to time as the work progresses, the doctrine that the master is required to furnish a safe place for the servant to work is not applicable.

Hugh Butler and Chas. M. Campbell, for appellant.

Ralph E. Esteb, John R. Wolff, and H. N. Hawkins, for appellee.

CAMPBELL, J. (after stating the facts).

1. The doctrine of safe place is foreign to this case. Where, as here, the place of work is not permanent, or has not been previously prepared by the master as a place for the doing of the work, or where the servant is employed to make his own place to work in, and the place is the result of the very work for which the servant is employed, or where the place is inherently dangerous, and necessarily changes from time to time as the work progresses, the doctrine contended for has no application. City of Greeley v. Foster, 32 Colo. 292, 75 P. 351. The instructions given by the court upon this branch of the case were therefore wholly inapplicable to the facts, and, aside from being not pertinent, were wrong, in that defendant was thereby made an insurer of plaintiff's safety in this respect, whereas the duty in a proper case is only to make the place of work reasonably safe.

2. Plaintiff's theory--which seems to have been adopted by the trial court--was that Johns was the vice principal of the defendant, for whose negligent acts, without regard to their character, the defendant was absolutely liable. Under some authorities the facts disclosed by this record would not make Johns a vice principal in any aspect, but only a fellow servant of the plaintiff; but for our present purpose, and without deciding the point, we may safely assume that he was a vice principal of defendant with respect to all of the positive or absolute duties which devolved upon the defendant as a master. But it does not follow that a master is liable for every negligent act of one who, in these respects, is his vice principal. As to some of his acts one may be a vice principal of the master and as to other acts a fellow servant. Plaintiff avers in his complaint that, had not Johns interfered, as he says, with the ordinary method of doing the work, it would have been, under defendant's...