Smith v. Hecla Min. Co.

• Decision Date: 22 April 1905
• Citation: 38 Wash. 454,80 P. 779
• Parties: SMITH v. HECLA MINING CO.
• Court: Washington Supreme Court

80 P. 779

38 Wash. 454

SMITH v. HECLA MINING CO.

Supreme Court of Washington

April 22, 1905

Appeal from Superior Court, Spokane County; William E. Richardson Judge.

Action by John D. Smith against the Hecla Mining Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Dunbar J., dissenting.

Danson & Huneke, for appellant.

Robertson Miller & Rosenhaupt and L. O. Whitsell, for respondent.

ROOT, J.

Respondent was employed by appellant in a silver and lead quartz mine situated near the town of Gem, in the state of Idaho. He was engaged as a 'mucker.' A mucker is one who removes the ore, rock, and débris thrown down by the miners in blasting. His work must be done, in part at least, ahead of the timbering which is to afford protection against the falling of ore, rock, and débris. At the time of the accident respondent claims that there was a distance of 30 or 35 feet between the last section of timbers and the 'face of the workings.' The timbers were constructed in sections of about five feet in length. Respondent said that he had been working at the same place where he was hurt about two weeks before. There was some evidence that work had been done at this place the second or third day before the accident. Respondent and others testified that the overhead ore and rock would 'air slack' when left for a few days, and was liable, on account thereof, to cave or fall. Respondent testified that he had been at work but a few minutes on the day of the accident, when a portion of the overhanging ore and rock fell upon him, causing him great injury. He contends that it was the duty of the appellant to have inspected this working place carefully, and to have kept it in a safe condition for him; that he had a right to rely upon the performance of this duty of inspection by the master that the duty was neglected or improperly performed; and that his injury was the direct, proximate result of such negligence on the part of the appellant. The trial resulted in a verdict and judgment in favor of the respondent. From this judgment appeal is taken to this court.

Appellant contends that the evidence is insufficient to support the verdict, and that its motions for judgment made at the close of plaintiff's case and at the close of the entire evidence should have been granted. Numerous errors are also assigned as to the introduction of evidence and as to the instructions.

Respondent placed upon the stand a witness by the name of Cook, who had been mining a little over four years, and had worked in four or five different mines. He was asked the following question: 'Mr. Cook, you know generally what the rules are among the Coeur d'Alene mines there as to the duties of the shift boss and miners and muckers?' Appellant objected to the question, but the objection was overruled. The witness answered that he thought he did, and, over appellant's objections, answered numerous questions as to the respective duties of the shift boss, miners, and muckers, and as to methods of mining. One of these questions asked him was as follows: 'What is the fact, if you know, when a mucker is sent to a stope to muck, as to his being required to inspect or bar down?' This was objected to, but objection overruled, and the witness answered. Another question was: 'When a laborer--a mucker--is sent to a stope to muck, is there any obligation upon him, or is he expected, to test the ground to see if it is safe?' Objected to, objection overruled, and answer of witness taken. This witness had not worked in the Hecla mine, and was not shown to know anything about appellant's rules or methods. His evidence as to the rules of some other company was immaterial. His evidence as to the respective duties of shift boss, miner, and mucker in appellant's mine was incompetent, as he did not show that he knew anything about the rules, customs, or methods of work employed in this mine. The duty of inspection is imposed as a matter of law. The method by which it is done is a matter resting with the master. He may have it done by the foreman, by the shift boss, by the 'mucker' himself, or by any one else, so long as he be competent for the purpose. The master, in performing this duty, is under no obligation to use the same method or the same officer or workmen as does some other mining company. Consequently evidence concerning the rules of certain other mining companies would be immaterial and incompetent to show the respective duties of various employés in appellant's mine. The action of the trial court in admitting such evidence constituted prejudicial error.

Among other instructions, the court gave the following: '(1) The court instructs you that it is a general rule that a servant entering into employment which is hazardous assumes the usual risks of the service and those which are apparent to ordinary observation, and when he accepts or continues in the service with knowledge of the character of obstructures from which injury may be apprehended, he also assumes the hazard incident to the situation. Those not obviously assumed by the employé are such perils as exist after the master has used due care and precaution to guard the former against danger; and the defective condition of the structures or the appliances which, by the exercise of reasonable care of the master, may be apprehened and obviated, and from the consequences of which he is relieved from responsibility to the servant by reason of the latter's knowledge of the situation, is such as is apparent to his observation. It is sufficient to say, however, that the law does not under any circumstances exact from the servant the use of diligence in ascertaining such defects, but charges him with knowledge of such only as are open to his observation. Beyond this he has a right to assume without inquiry or investigation that his employer has discharged his duty of furnishing him with a reasonably safe place in which to perform his duties.' The meaning of much of this instruction is obscure. The last part thereof is clearly erroneous. The law does require the servant to use some diligence in ascertaining defects and in protecting himself from the dangers to be reasonably apprehended therefrom--such diligence and care as a man of ordinary prudence would exercise under the same circumstances. He must, to protect himself from injury, use diligence commensurate with the dangers known by him to be incident to the character and place of work wherein he is employed. Mining is known to be dangerous work. Respondent admits that he knew this; that he knew there was more or less danger from falling rock; that 'air slacking' was constantly going on, which loosened the rock overhead, and made it more dangerous from day to day. As a mucker it was necessary for him to do much of his work ahead of the timbering; that is, he must remove the ore thrown down by the blasting before the timbers could be placed in position to protect him. The very nature of mining is such that the working places of the miners and muckers are constantly undergoing changes. These changes are necessarily accompanied with dangers to the workmen notwithstanding careful inspection and inspection by the master. The 'safe place' rule can be applied only in a qualified sense. It is the duty of the master to keep these working places in as safe condition as he can, consistently with the reasonable and practicable carrying on of the business. The working places being necessarily dangerous, it is incumbent upon the master to provide for inspection; such inspection as will afford as full security as can reasonably be made practical in view of the nature of the work. But the very conditions of danger which impose the duty of careful inspection upon the master also impose a corresponding duty of care upon the servant. The master has the right to suppose that the servant will be alert, and observe that diligence to detect and avoid dangers which a man of ordinary prudence would exercise for self-preservation under like conditions. In the case of Anderson v. Inland Telephone, etc., Co., 19 Wash. 575, 581, 53 P. 657, 658, 41 L. R. A. 410, this court, speaking by Dunbar, J., said: 'While there is no gainsaying the rule that under ordinary circumstances the employé has the right to rely upon the fact that the master will furnish him a safe place to work and safe appliances, yet the law does not intend that this shall be a blind and unreasonable reliance, but that reasonable men shall exercise in a reasonable manner the faculties of which they are possessed.' It will be seen that the idea here expressed is absolutely at variance with that presented in the instruction hereinbefore quoted. In the case of Olson v. McMurray Cedar Lumber Co., 9 Wash. 500, 502, 37 P. 679, 680, this court, speaking by Dunbar, J., used the following language: 'Men, when they are working around dangerous machinery, must notice. Their faculties and senses are given them for the purpose of self-preservation, and they must exercise them to a reasonable extent.' This language is plain and unequivocal, and absolutely inconsistent with the idea that the servant is not called upon to use 'diligence in ascertaining the condition of his surroundings.' What was said in the two cases just cited is especially applicable to one working in a mine, where his working place is necessarily beset with more or less peril. In the case of Steeples v. Panel, etc., Box Co., 33 Wash. 359, 365, 74 P. 475, 476, this court said: 'It is true the plaintiff testifies that he did not know that the platform was without a guard; but a plaintiff cannot recover simply by making a statement of that kind, if, under the circumstances, it was his duty, as a reasonably prudent man, to have made such an examination as would have...