Urich v. Utah Apex Mining Co.

• Decision Date: 04 December 1917
• Docket Number: 3084
• Citation: 169 P. 263,51 Utah 206
• Court: Utah Supreme Court
• Parties: URICH v. UTAH APEX MINING CO

169 P. 263

51 Utah 206

URICH v. UTAH APEX MINING CO

No. 3084

Supreme Court of Utah

December 4, 1917

Appeal from District Court of Salt Lake County, Third District; Hon T. D. Lewis, Judge.

Action by John Urich against the Utah Apex Mining Company.

From a judgment for plaintiff. Defendant appeals.

AFFIRMED.

King Nibley & Farnsworth and S. A. King for appellant.

Willard Hanson for respondent.

FRICK C. J. McCARTY, CORFMAN, THURMAN, and GIDEON, JJ., concur.

OPINION

FRICK, C. J.

The plaintiff, who was employed by the defendant in its mine for the purpose of operating a drilling machine and at times to perform such other duties as he was directed, brought this action to recover damages for personal injuries which he alleged were caused through the negligence of the defendant. The acts of negligence relied on were that the defendant failed to properly timber a certain stope in its mine where the plaintiff was employed; that it negligently omitted to inspect the roof, sides, and "back" of said stope; that it negligently failed to "pick down" the loose rock and earth from the roof, sides, etc., of said stope; and that it negligently gave assurance to plaintiff that said stope was in a safe condition. The defendant denied all of the alleged acts of negligence and set up the affirmative defenses of contributory negligence, assumption of risk, and that plaintiff was injured through the negligence of certain of his fellow servants. The jury returned a verdict in favor of the plaintiff. Judgment was duly entered thereon, and the defendant appeals.

The facts, briefly stated, are: That the plaintiff was employed to operate a drilling machine in defendant's mine. That he had been working in the particular stope where the accident occurred for about six or seven shifts before the accident. That on the evening of the day preceding the accident a portion of the timbering in said stope was shot down in discharging a blast, and on the following morning the plaintiff went to his work at the face of the stope to operate his drilling machine, and the mine shift boss then ordered the men there, including the plaintiff, to "put up" the timbers that were shot down the evening before. That the plaintiff and his partner did not remain long at that work for the reason that the shift boss told them:

"You fellows go on your machine. We want to make muck, and I will put the timber men here. They will put these timbers up."

That the timber men continued to put up the timbers, and plaintiff and his partner went to work at the face of the stope with the drilling machine. Plaintiff and his partner continued drilling during the day until about four o'clock p. m. The shift boss then directed plaintiff to go down to some other point in the mine about twenty-five feet from where plaintiff was at work. The shift boss, speaking to plaintiff, said: "John, go down and cover the chute." Plaintiff did as directed, and then returned to where the shift boss was in the face of the stope. While in the act of passing to the face of the stope, and in passing through the timbers which had been put up by the timber men during the day, earth and rock fell from the roof of the stope on plaintiff, and he sustained a fractured leg. The earth and rock fell from the roof of the stope at a point where the timber men had failed to timber clear up to the roof of the stope. It was made to appear that the earth and rock would not have fallen down and plaintiff would not have been injured if the timber men had put up the timbers clear to the roof of the stope, which they failed to do. The evidence also was to the effect that, under the rules of the defendant, plaintiff was required to inspect the place where he was at work. It was, however, not the duty of the plaintiff to inspect the stope at the point where he was injured, and he testified: "I did not do any timbering and had nothing to do with it." It nevertheless was necessary for him to pass under it to go to the face of the stope where he was at work, as before stated. It also appeared that the timber men could have protected the roof of the stope, and could have made the place reasonably safe by putting in what is termed a "short set" of timbers and covered them, which they failed to do, and the earth and rock fell down and injured plaintiff as before stated.

Upon substantially the foregoing facts, counsel for defendant moved for a nonsuit. The motion was denied, and they now insist the district court erred in refusing to grant the motion.

Counsel contend that the motion should have been granted for the reason that this case comes within the rule laid down by this court in the case of Golesh v Utah Apex M. Co., 49 Utah 232, 162 P. 369. We cannot agree with counsel. In that case...