Thurman v. Pittsburg & M. Copper Co.
| Decision Date | 18 April 1910 |
| Citation | 108 P. 588,41 Mont. 141 |
| Parties | THURMAN v. PITTSBURG & M. COPPER CO. et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Silver Bow County; John B. McClernan Judge.
Action by Court Thurman against the Pittsburg & Montana Copper Company and another. From a judgment for defendants and from an order denying a new trial, plaintiff appeals. Affirmed.
Mackel & Meyer, for appellant.
Kremer Sanders & Kremer, for respondents.
This action was brought by plaintiff to recover damages for personal injuries received by him during the course of his employment by the defendant corporation in its mine in Silver Bow county, and while working under the direction of the defendant Ray, its foreman. The complaint alleges with much detail the circumstances surrounding the accident. It states substantially the following: That during the month of May 1907, the plaintiff was in the employ of the defendant company as a machine man, competent to operate a compressed-air drill; that he was directed to work at a place in the mine, a particular description of which he cannot give, which had not been timbered; that it was the duty of the defendants to furnish timbermen to timber such places as had been excavated during the progress of the work, and, when the timbermen failed to do the required timbering, to require the shifts of men who had made the excavations to timber them; that the defendants had failed to furnish timbermen and had failed to require the outgoing shift to timber the said place, and thus failed to exercise ordinary care to furnish plaintiff a reasonably safe place in which to work; that the ground at the point where the plaintiff was directed to work was unstable and likely to cave and fall, from slacking upon exposure to the air, if jarred or shaken to the slightest extent; that, notwithstanding this fact, the defendants caused to be operated at various points on the same level upon which plaintiff was working several large compressed-air drills in such close proximity to plaintiff that the blows struck by them against the walls of the mine shook and jarred the ground for a considerable space adjacent thereto, and particularly at the place where the plaintiff was working; that it was exceedingly dangerous to work at that place after an excavation had been made and before it had been properly timbered, and the danger was increased by the operation of the drills, a fact not known to the plaintiff, but well known to the defendants; that the defendants carelessly and negligently directed plaintiff to work in the said place, and that, while he was so engaged at work "and because of the carelessness and negligence complained of," a piece of rock became loose and fell upon his back, causing the injury. It proceeds: "That at the said time plaintiff was acting within the scope of his employment and acting and working under the orders and directions of the defendants herein, and that at the time he was so injured, he was setting up and preparing his said drill and getting the same ready and in position, preparatory to drilling holes in the wall at the place wherein plaintiff was at the said time employed, and that all of the things which plaintiff was at the said time doing and performing was a part of plaintiff's employment, and he was acting in the discharge of the duties of, and within the scope of, his employment when he was so injured." Then follow allegations detailing the character of the injury and plaintiff's resulting disability, with demand for judgment. General and special demurrers, interposed by the defendants, having been overruled, they answered, denying all the material allegations of the complaint, and alleging the usual defenses of contributory negligence, assumption of risk, and that the injury was caused by the negligence of a fellow servant of plaintiff. At the close of plaintiff's case the defendants each moved for a nonsuit, upon the grounds, among others, that the evidence fails to show that either of them was guilty of the negligence alleged in the complaint, and hence that there is a fatal variance between the allegations contained in the complaint and the evidence adduced in support thereof, and that it affirmatively appears that the plaintiff assumed the risk. The motion for nonsuit was sustained and judgment ordered for defendants. From the judgment and an order denying his motion for a new trial the plaintiff has appealed.
Though counsel make three assignments of error, they all present the stone question, to wit: Did the court err in granting the motion for nonsuit? Before entering upon the examination of the evidence, we shall consider briefly the theory of the action adopted by counsel for plaintiff, as shown by the allegations contained in the complaint.
Section 5248, Rev. Codes, declares: "That every company, corporation, or individual operating any mine, smelter or mill for the refining of ores shall be liable for any damages sustained by any employés thereof within this state, without contributing negligence on his part, when such damage is caused by the negligence of any superintendent, foreman, shift boss, hoisting or other engineer or cranemen." The purpose and effect of this provision is to declare who among the agents and employés of the owner of a mine, or mill, or smelter, are to be deemed vice principals for whose negligence the owner may be held liable to other employés, upon the principle embodied in the maxim, "respondeat superior"; in other words, to classify the employés by declaring who among them are vice principals. In so far as it puts into that class employés who under the common-law rule were held to be fellow servants because engaged with other employés in a common employment for a common purpose, it modifies the common-law rule that the master is not liable for injuries caused to an employé by the negligence of a fellow servant. It creates a liability where none existed before its enactment by taking away a defense which was theretofore available to the master. In Kelly v. Northern Pacific Ry. Co., 35 Mont. 243, 88 P. 1009, this court discussed provisions of a statute having the same purpose and effect with reference to persons and corporations engaged in operating railways. Rev. Codes, § 5251. The cases in which were involved and determined questions touching the form of pleading, which must be adopted in order to state a cause of action under similar provisions, were examined. Following what we deemed the best reasoning upon the subject, the court, through Mr. Justice Smith, said: "In order to settle the rule in this state, we decide that, where a party relies for recovery upon a special statute creating a liability where none existed before, he must set forth in ordinary and concise language a statement of facts showing his right to recover under that statute." Testing the complaint in this case by this rule, it falls far short of stating a cause of action under the statute. The defendants are charged jointly with primary negligence. Arranging the allegations in logical order, the substance of the charge is that the ground where the plaintiff was occupied was soft and likely to cave and fall because of slacking when exposed to the air; that the danger was increased by concussion produced by the drills; that this fact was known to defendants, and not to plaintiff; that it was the duty of the defendants to furnish timbermen to timber the ground in order that it be properly supported; that defendants failed to do this; that they carelessly and negligently ordered him to work in the excavation before it was timbered, and that because of this negligence, while he was engaged in setting up his machine, a piece of rock fell upon him, inflicting the injury complained of. As observed by Mr. Justice Smith, in the Kelly Case, supra, in adopting the form he did in charging the negligence upon which is predicated the right to recover, the plaintiff lost sight of the distinction between the acts of the corporation, which, though done by an agent, are yet primarily the acts of the corporation, and those for which it may be held liable upon the principle of the maxim, "respondeat superior." The complaint does not invoke the principle of respondeat superior upon which the statute is based, but counts exclusively upon the violation, by both of defendants, of their common-law duty to use ordinary care to furnish the plaintiff with a reasonably safe place in which to do his work. It does not allege any specific act of negligence by Ray, the foreman, which it imputes to the corporation. We must therefore examine the evidence with a view of determining whether it tends to support the cause of action thus stated.
The facts established by the evidence are these: The plaintiff was employed as a machine man, but he was engaged with others in excavating a drift or tunnel on the 800-foot level of the defendant company's mine. His duties included drilling,...
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