Union Pac. Ry. Co. v. Jarvi, 128.

• Decision Date: 17 October 1892
• Docket Number: 128.
• Citation: 53 F. 65
• Parties: UNION PAC. RY. CO. v. JARVI.
• Court: U.S. Court of Appeals — Eighth Circuit

53 F. 65

UNION PAC. RY. CO. v. JARVI.

No. 128.

United States Court of Appeals, Eighth Circuit.

October 17, 1892

Statement by SANBORN, Circuit Judge:

The defendant in error, who was the plaintiff below, f below obtained a judgment against the Union Pacific Railway Company for $5,000 for injuries which he received from the falling of a stone from the roof of a mine in which he was employed by the defendant as a miner. In his complaint he alleged that his injury resulted from the failure of the defendant to use reasonable care to support this roof, and provide a safe place for him to work. The defendant, in its answer, denied all negligence on its part, and alleged that the plaintiff was injured at a place where he was out of the line of his employment, and that he was himself guilty of negligence that caused the injury. The testimony proved that at the time of the injury the plaintiff had been at work about two weeks in the dip slope and the main slope. About 75 feet from this junction the air course in which plaintiff was working branched off from the dip slope. There was an iron railroad track extending from the main slope down the dip slope and connecting by a switch with a track which extended down the air course to the point where plaintiff was at work, and plaintiff's wages were measured by the amount of coal he produced. He was furnished seven cars each day, which he obtained at the junction of the main and dip slopes, pushed to his place of working, and filled. When loaded, these cars were drawn by mules driven by defendant's employes to the main slope, where they were taken out of the mine by machinery. On the day of the accident there was no car at the nearest switch or at his working place for him to fill in the morning, and, after digging about an hour and a half, he walked out towards the main slope to get a car, and after he entered the dip slope, and, either at the junction of the two slopes or a few feet down the dip slope therefrom, he was caught and injured by a large stone that fell from the roof. In 1885 the miners adopted a rule, which was assented to by defendant, that the empty cars should be delivered by defendant's drivers at the switch nearest to the working place of the miners respectively, but none had ever been so delivered to plaintiff while he was at work in the air course where he was injured. He and his partner had uniformly obtained their cars at the main slope, and there was no evidence that this rule was known to the plaintiff. The plaintiff testified that at a point about five yards from the main slope, as he was walking up the dip slope to get his car, the stone fell upon him from the roof; that he passed this place morning and evening in going to and returning from his work, and seven times a day as he went after cars; that the roof was about eight feet high, so that he could not reach it with his hand, but that he could see it with his lamp; that it was wet, and he had seen stone fall from the roof at this point once before, but that small pieces had fallen from the roof all over the mine; that moisture in the roof caused the stones to become loose, and made them liable to fall, but that he did not know this until after the accident; that Mr Rodgers, the mining boss, kept lots of men in the mine to fix the roof, but he (the plaintiff) had never had any experience in that kind of work, and did not know what kind of a roof it was in the dip slope.

Two miners who were working down the slope, and who passed under this roof frequently every day, testified that over the coal which had been removed from this slope was a clay rock about three feet thick, which water disintegrated, and that a large part of this roof was wet. Another witness testified that some weeks before, at the point where the dip slope and main slope joined, the stone kept coming down, and the defendant thereupon blasted out the clay rock in the roof of the main slope at this point until it came to a solid sand rock above it, which formed a good roof. The witnesses for the defendant testified that the accident happened at the junction of the main and dip slopes, and was caused by the fall of a piece of this clay rock, which was found to have a seam in it that no inspection would detect. G. L. Black, the general superintendent of all the mines of the defendant, testified that it was the duty of Mr. Rodgers, the mine boss, to see to the safety of the men. L. R. Myers, the superintendent of the mine in which the accident occurred, called this clay rock 'bastard rock,' and testified that it did not make a very good roof in itself; that at times it was a rather treacherous kind of stone. W. H. Brown, the defendant's general inspector of mines, testified that the roof of this mine at the junction of the two slopes was not a good roof and so they decided to, and did, take down the clay rock at this point about two months before the accident. That he inspected the mine once a month. That a large portion of the dip slope was timbered at the time of the accident, and he thought it was timbered within 20 feet of the main slope. That 'the roof in the dip slope was pretty fair; part of it first class. It was not a bad roof. I am sure of that. It was pretty fair. Of course, there are degrees of badness as well as of goodness. The roof in the dip slope was neither good nor bad; it was a pretty fair roof. A good roof is one that don't want any timber; a fair roof is one that might possibly go, but needs watching. It was a fire-clay roof, and you want to watch a fire-clay roof a little closer than rock roof. ' That the proper want to watch a fire-clay roof a little closer than rock roof. ' That the proper way to test such a roof is by sounding it with the hands, or with a pick or cane. Walter Rodgers, the mine boss, whose duty it was to watch the men and their work and see to their safety, testified that he sometimes saw the miners in the dip slope go the main slope to get their cars. That he visited the part of the mine where the accident happened daily. That he was as careful as he could be in looking at the roof to see if it was safe, and believed it was so before the accident; but he nowhere testified that he sounded or tested it with hand, pick, or cane.

Defendant requested the court to instruct the jury to return a verdict in its favor, but that request was refused, and this refusal was one of the errors assigned; others relate to the charge to the jury.

John W. Lacey, (John M. Thurston and Willis Van Devanter, on the brief,) for plaintiff in error.

Constantine J. Smyth, (Timothy J. Mahoney, on the brief,) for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges, and SHIRAS, District Judge.

SANBORN Circuit Judge.

It is the duty of the employer to exercise ordinary care to provide a reasonably safe place in which his employe may perform his service. It is his duty to use diligence to keep this place in a reasonably safe condition, so that his servant may not be exposed to unnecessary and unreasonable risks. The care and diligence required of the master is such as a reasonably prudent man would exercise under like circumstances in order to protect his servants from injury. It must be commensurate with the character of the service required, and with the dangers that a reasonably prudent man would apprehend under the circumstances of each particular case. Obviously, a far higher degree of care and diligence is demanded of the master who places his servant at work digging coal beneath overhanging masses of rock and earth in a mine than of him who places his employe on the surface of the earth, where danger from superincumbent masses is not to be apprehended. A reasonably prudent man would exercise greater care and watchfulness in the former than in the latter case, and, throughout all the varied occupations of mankind, the greater the danger that a reasonably intelligent and prudent man would apprehend, the higher is the degree of care and diligence the law requires of the master in the protection of the servant. For a failure to exercise this care, resulting in the injury of the employe, the employer is liable; and this duty and liability extend, not only to the unreasonable and unnecessary risks that are known to the employer, but to such as a reasonably prudent man in the exercise of ordinary diligence-- diligence proportionate to the occasion--would have known and apprehended. Cook v. Railroad Co., 34 Minn. 45, 24 N.W. 311; Hayden v. Manufacturing Co., 29 Conn. 548; Noyes v. Smith, 28 Vt. 59; Gibson v. Railroad Co., 46 Mo. 163; Nadau v. Lumber Co., (Wis.) 43 N.W. 1135, 1137; Hutchinson v. Railroad Co., 5 Exch. 343; Huddleston v. Machine Shop, 106 Mass. 282; Snow v. Railroad Co., 8 Allen, 441; Sullivan v. Manufacturing Co., 113 Mass. 396; Ryan v. Fowler, 24 N.Y. 410; Patterson v. Railway Co., 76 Pa.St. 389; Swoboda v. Ward, 40 Mich. 420.

This duty and liability rest upon the same principle, and are governed by the same rules, as the duty and liability to provide and keep in reasonably safe condition the machinery and tools furnished employes. While the master is not a guarantor or insurer of the safety of the place in which he puts his servant, or of the safety of the tools or machinery he furnishes, he is in...