Samuelson v. Cleveland Iron Min. Co.

• Decision Date: 11 October 1882
• Court: Michigan Supreme Court
• Parties: SAMUELSON v. CLEVELAND IRON MINING CO.

13 N.W. 499

49 Mich. 164

SAMUELSON v. CLEVELAND IRON MINING CO.

Supreme Court of Michigan

October 11, 1882

Whoever expressly or impliedly invites others upon his premises assumes the duty of warning all who accept the invitation of any danger in coming of which he knows or ought to know but of which they are not aware.

If the owner of a mine turns it over to contractors when it is in an unsafe condition of which he knows or might know by exercising proper care, he is responsible for injuries resulting to a miner who is put to work in ignorance of the danger.

As between landlord and tenant the tenant is presumptively liable for a nuisance on the premises unless the lease contemplated its continuance, in which case both would be liable.

Where the duty to keep the premises in safe condition is on the owner, he is not excused by the fact that danger is attributable to the fault of a contractor or other person but the duty does not arise from ownership merely; he may transfer the responsibility for their safety unless he retains control and gives others to understand that they may rely upon him to protect them from the negligence of the occupants.

The owner of a mine contracted with certain persons to work it but stipulated that the contractors and not the owner should be responsible for any injuries to workmen and the responsibility was assumed by the contractors. The mine was in proper condition when the contractors took possession and there was nothing in the contract to lead workmen to suppose that the owner retained control of it or was responsible for their protection unless it were a stipulation that when the contractors repaired the mine the work should be done under the supervision of a person designated by the owner. Held, in an action against the owner for an injury to a workman, that this stipulation was not that the owner should supervise but that he should have the right to supervise, and was for the protection of the owner; that the neglect of his own interests was not a legal wrong to others and that plaintiff has no right of action.

Error to Marquette.

Geo. W. Hayden, for plaintiff in error.

W.P. Healy, for defendant in error.

COOLEY, J.

This action was instituted to recover damages of the defendant for negligently causing the death of John P. Samuelson the plaintiff's intestate. The declaration avers that defendant, on June 10 1879, and for a long time prior thereto, was owner of an iron mine in Ishpeming, in which was a certain underground pit called pit No. 5; that the intestate on the day named and for a few preceding days was employed therein as a common miner under Selwood & Williams, who, under and by the direction of defendant were working said pit and employing men for the purpose; that the defendant assumed and had entire charge and control over all safety arrangements in said pit and in the mine, directed the placing of all pillars, had the care of timbering and bracing therein, when necessary, and the determination of all questions relating to the safe condition of said pit, and the duty devolved upon said company to said intestate in his said employment to see at all times that said pit was safe, and that examinations were made for that purpose from time to time, and that defendant assumed all risks to said intestate in his said employment arising from dangers occurring in said pit which might be remedied by care and skill; that the roof of said pit was of soap-stone, which was a dangerous rock for roof support, of slight cohesiveness, liable at all times to crumble and fall, and that the roof in question required constant care, attention and examination in order to keep the same in a reasonably-safe condition and to prevent the same from falling on the workmen below, and that supports and timbers ought to have been placed under it to make it safe, but defendant neglected and refused to place them; that on the day named while intestate was at work in said pit a large quantity of rock fell from said roof without any fault or negligence of said intestate, but by and through the fault and negligence of defendant, which struck and killed the intestate. And plaintiff avers that the death was caused by the wrongful conduct, carelessness, negligence and default of defendant, and she claims damages therefor.

The circuit judge was of opinion that no case was made for the jury and accordingly directed a verdict for the defendant.

Liability on the part of defendant is claimed on two grounds: First, that defendant being the owner of real estate which it was unsafe to venture upon, invited the intestate and others upon it without apprising them of the danger, and that the death occurred in consequence; and, second, that the defendant owed a duty to all persons employed in the mine to be vigilant in guarding against dangers and that this duty was wholly neglected.

The declaration states that the mine at the time was being worked by Selwood & Williams. It appears that this was under a written contract bearing date May 1, 1878, made by defendant with E.A. Johnson & Co., to whom Selwood & Williams succeeded, whereby the contractors were to have the working of the mine, and deliver the ore to the defendant for a certain specified price per ton. The material parts of the contract, so far as they are important to this controversy, are the following--the parties of the first part mentioned therein being E.A. Johnson & Co. and the party of the second part the mining company:

"The quality of such ore shall be satisfactory to the superintendent (for the time being) of said second party, and shall be delivered in shipping cars on the railroad track at the mine during the shipping season, and at such other times as said second party may designate, and shall also be dumped into carts and sleighs, or stock piled at the option of said superintendent of said second party. Such mine shall be worked in a careful, prudent, and good workmanlike manner, to the entire satisfaction of said superintendent; and in case it is not so worked, and is left in a bad condition at the termination of this contract, then said second party shall have the right and is hereby authorized to put the said mine in the condition it should and would be if so worked in a good workmanlike manner, at the expense of said first parties, and retain the costs thereof out of any moneys in its hands belonging to said first parties; and whereas, iron mining in Marquette county, including said mine, is essentially a dangerous business, where accidents and injuries to the miners and their employes are likely to occur at any time, it is therefore hereby agreed that the relationship hereby created between the parties hereto is that of contractor and contractee, and not that of master and servant. It is the duty of the said first parties to be on the watch for danger at all times, either from slides, falls of rock, derangement of the skips, or of the machinery, and any and all other causes of danger in the mine. And in case said first parties regard any place as dangerous, they shall not be compelled to carry on any mining at such place. It shall be their duty to take down all rock or ore making any place where they are working dangerous; and when they find any dangerous ground it shall be their duty instantly to report such dangerous place to said superintendent, to the end that he may supervise the removal of the dangerous rock, or take such other steps to make such place safe; that is to say, as safe as a mine can be expected to be, as there can be no absolute safety in an iron or other underground mine. The parties of the first part, in consideration of the letting to them this contract, and for the price to be paid them for the ore mined, hereby agree to assume for themselves and their employes all risks of danger or accident, no matter from what cause the same may arise, and all precautions taken against the danger of accident in said mine shall be done by said first parties, the said second party only furnishing the place to mine--the making of it safe hereby devolving on said first parties under the supervision, advice, and direction of said superintendent, for which no charge will be made by said second party.

"Nothing herein shall be construed as creating any liability on the part of said second party for any debts, damages, or other liability incurred by said first parties hereunder; and in case said second party is made liable for any act, omission, misfeasance, or negligence of said first parties, or any or either of them, in the working of said mine, then said first parties shall reimburse and save harmless said second party, and said second party may retain enough of said earnings of said first parties in its hands to pay any such liability."

The defendant insists that so long as the mine was being worked under this contract all responsibility for the care and safety of the mine was upon the contractors, and that they alone were charged with any duty for the protection of the workmen. If the mine were in an unsafe condition when it was handed over to the contractors, and this was known to defendant, or by the exercise of proper care ought to have been known, and if in consequence a miner who was brought there in ignorance of the danger was killed, the defendant should be held responsible. Every man who expressly or by implication invites others to come upon his premises, assumes to all who accept the invitation the duty to warn them of any danger in coming, which he knows of or ought to know of, and of which they are not aware. This is a very just and very familiar principle. Southcote v. Stanley, 1 Hurl. &amp N. 247; S.C. 38 Eng.L. & Eq. 295; Indermaur v. Dames, L.R. 1 C.P. 274, and L.R. 2 C.P. 181; Francis v. Cockerell,...