Warner v. Pittsburgh-Idaho Co., Ltd.

• Decision Date: 09 November 1923
• Parties: ED WARNER, Respondent, v. PITTSBURGH-IDAHO COMPANY, LIMITED, a Corporation, Appellant
• Court: Idaho Supreme Court

220 P. 492

38 Idaho 254

ED WARNER, Respondent, v. PITTSBURGH-IDAHO COMPANY, LIMITED, a Corporation, Appellant

Supreme Court of Idaho

November 9, 1923

ACTIONABLE NEGLIGENCE-ASSUMED RISK-DUTY OF MASTER-BURDEN OF PROOF-DANGEROUS APPLIANCES-AMOUNT OF DAMAGES-WHEN QUESTION OF LAW-INSTRUCTIONS.

1. Where a mine has several hundred feet of underground workings, consisting of drifts, tunnels, stopes and winzes the different levels being connected by manways leading to an exit through the main tunnel, and gasoline internal combustion engines are used for operating the pumps, a part of this fuel being required to be drawn into cans and carried to a distant part of the mine, this being done by a workman who was permitted to use an open carbide light, the company operating the mine is guilty of actionable negligence where a fire results from such conditions, and an employee who is entrapped in the mine for twelve hours may recover for injuries caused thereby.

2. In this state, assumed risk and contributory negligence are matters of defense that must be pleaded and proved to make the same available.

3. It is the duty of the master to furnish the servant with a reasonably safe place in which to work, and with reasonably safe tools, machinery and appliances with which to do the work required of him. This is a positive duty, which cannot be delegated by the master so as to relieve him of such duty.

4. One cannot excuse negligence in furnishing dangerous appliances with which to work by reason of not being financially able to purchase and instal safe appliances.

5. In an action against a mining company for injuries caused by being entrapped for a period of twelve hours in a mine filled with smoke and dangerous gases, caused by a gasoline explosion and fire which followed, the question of just compensation for injuries alleged to have been received by an employee is a matter within the discretion of the jury, under proper instructions, and a court cannot say as a matter of law that a verdict of $1,000 is so excessive as to warrant the inference that it was influenced by passion or prejudice.

6. Instructions must be read and considered as a whole, in connection with the facts and circumstances of the case in which they are given; and when so considered in this case they afford no justification for its reversal.

APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. Ralph W. Adair, Judge.

Action for damages for personal injury. Judgment for plaintiff and defendant appeals. Affirmed.

Judgment affirmed, with costs to respondent.

Whitcomb Cowen & Clark, for Appellant.

The plaintiff assumes ordinary risk, which includes risk arising from the character of instrumentalities used. (3 Labatt's Master and Servant, 2d ed., secs. 1171-1173.)

The master is not legally obligated to use the safest kind of machinery and appliances. (3 Labatt's Master and Servant 2d ed., sec. 931; Goure v. Storey, 17 Idaho 352, 105 P. 794.)

A master is not responsible for negligent use of safe appliances by fellow-servant. No proof was made that the appliances furnished by the defendant company were unsafe. (4 Labatt's Master and Servant, 2d ed., secs. 1520, 1521; Zienke v. Northern P. Ry Co., 8 Idaho 54, 66 P. 828.)

The alleged injury was the result of the negligence of a fellow-workman. Walters, the engineer, and the plaintiff, as mechanic's helper, were working on the same machinery at the time of the accident. (4 Labatt's Master and Servant, 2d ed., secs. 1393, 1395, note 8; 26 Cyc. 1276G.)

Employee assumes the risk of all known dangers, actual or constructive, including the negligence of the master. (26 Cyc. 1196, par. 5; Selhaver v. Dover Lumber Co., 31 Idaho 218, 169 P. 1169; Smith v. Hecla Mining Co., 38 Wash. 454, 80 P. 779; McGlynn v. Brodie, 31 Cal. 376; 26 Cyc. 1196; Brazil Block Coal Co. v. Gibson, 160 Ind. 319, 98 Am. St. 281, 66 N.E. 882; Baltimore & P. Ry. Co. v. State, 75 Md. 152, 32 Am. St. 372, note, 23 A. 310; Drake v. Union P. Ry. Co., 2 Idaho 487, 21 P. 560, 4 L. R. A., N. S., 848, note.)

The jury should be instructed to exonerate the master in all cases where the employee knew of the dangers incident to his employment, actual or constructive, including the negligence of the master. (Sowden v. Idaho Quartz Mining Co., 55 Cal. 443; Union Pacific Ry. Co. v. Monden, 50 Kan. 539, 31 P. 1002; So. Indiana Ry. Co. v. Moore, 34 Ind.App. 154, 72 N.E. 479; Cleveland etc. Ry. Co. v. Scott, 29 Ind.App. 519, 64 N.E. 896; Hanson etc. Ry. Co. v. DeWalt (Tex.), 70 S.W. 531; 26 Cyc. 1503, note 38.)

The better opinion appears to be that the burden is upon the plaintiff to negative assumption of risk and make proof thereof. (26 Cyc. 1397, note 89; Minty v. Union P. Ry. Co., 2 Idaho 471, 21 P. 660, 4 L. R. A. 409.)

It was plaintiff's duty to complain to the defendant company of any danger or defect in the use of gasoline engines underground, and in the manner of handling the gasoline. (Harvey v. Alturas Gold Min. Co., 3 Idaho 510, 31 P. 819; 3 Labatt's Master and Servant, 2d ed., sec. 1217.)

L. E. Glennon, for Respondent.

"It is the duty of the master to furnish the servant with a reasonably safe place at which to work, and with reasonably safe machinery, tools and implements with which to work." (Smith v. Potlatch Lumber Co., 22 Idaho 782, 128 P. 546; Harvey v. Alturas Gold Mining Co., 3 Idaho 510, 31 P. 819; Crawford v. Bonners Ferry Lumber Co., 12 Idaho 678, 10 Ann. Cas. 1, 87 P. 998; Craesafulli v. Winston Bros. Co., 18 Idaho 158, 108 P. 740; Maloney v. Winston Bros. Co., 18 Idaho 740, 111 P. 1080, 47 L. R. A., N. S., 634; Tucker v. Palmberg, 28 Idaho 693, 155 P. 891; Weisner v. Bonners Ferry Lumber Co., 29 Idaho 526, 160 P. 647, L. R. A. 1917C, 328; Cnkovch v. Success Min. Co., 30 Idaho 623, 166 P. 567; Henness v. Pend d'Oreille Min. & Reduc. Co., 32 Idaho 121, 178 P. 836; Ramon v. Interstate Utilities Co., 31 Idaho 117, 170 P. 88.)

An employee only assumes the risk naturally incident to the particular line of employment in which he is engaged. And he is held to have assumed such risks only when the master has fully performed his duty and provided a reasonably safe place in which to work. (Maw v. Coast Lumber Co., 19 Idaho 396, 114 P. 9; Freeman v. Fuller (Tex. Civ.), 127 S.W. 1194; Missouri K. & T. Ry. Co. v. Quinlan, 77 Kan. 126, 93 P. 632, 11 L. R. A., N. S., 1153; Kangas v. National Copper Min. Co., 32 Idaho 602, 187 P. 792; Erickson v. Rutledge T. Co., 34 Idaho 754, 203 P. 1078; Kinzell v. Chicago etc. Ry. Co., 33 Idaho 1, 190 P. 255; 3 Labatt's Master and Servant, 2d ed., sec. 894.)

In cases of this kind the question of just compensation is always a matter within the discretion of the jury. When it appears from the evidence that the jury has not abused that discretion, nor been influenced by bias or prejudice, it is not within the province of the court to disturb the verdict. (Horn v. Boise City Canal Co., 7 Idaho 640, 65 P. 145; 8 Am. & Eng. Ency. of Law, 2d ed., 630; Tarr v. Oregon Short Line R. R. Co., 14 Idaho 192, 125 Am. St. 151, 93 P. 257.)

The question of contributory negligence is a matter of defense and the burden is on the defendant to establish the same. (Crawford v. Bonners Ferry Lumber Co., 12 Idaho 678, 10 Ann. Cas. 1, 87 P. 998; Knauf v. Dover Lumber Co., 20 Idaho 773, 120 P. 157.)

WILLIAM A. LEE, J. Budge, C. J., and McCarthy, Dunn and Wm. E. Lee, JJ., concur.

OPINION

WILLIAM A. LEE, J.

--This is an action by respondent against appellant to recover damages for personal injuries alleged to have been caused by reason of his being confined underground in the mining property of appellant while the mine was filled with smoke and poisonous gases, resulting from a fire in the mine, on January 3, 1917.

The complaint stated four separate causes of action, but at the termination of the taking of evidence, respondent dismissed the second and fourth causes, and the case was submitted to the jury upon the first and third counts of the complaint. The first is based upon the alleged failure of appellant to provide respondent a reasonably safe place in which to work, and the third is based upon the alleged failure of appellant to furnish its employees with reasonably safe appliances and equipment with which to perform their work.

The evidence discloses that in the operation of the mine, two gasoline engines were used underground to remove water from the workings. Both were located on the 600-foot level. The main gasoline supply was stored in a tank on the 400-foot level, from which storage tank the gasoline was conducted to the first engine, at the foot of the main shaft on the 600-foot level, through an iron pipe. For the purpose of supplying gasoline to the second engine, located several hundred feet from the pipe-line, one Walters, an employee of appellant, who was in charge of the engines, attempted to draw gasoline from the pipe-line at the first engine into a five-gallon can. For light during this operation he used an open carbide lamp, and during the operation the gasoline he was attempting to draw became ignited. In addition to spreading to adjoining combustible material, it burned the gasoline from the ten-gallon supply tank of the first engine, and whatever had been drawn for the second.

By reason of the fact that the air currents in the mine carried smoke and fumes up the main shaft and down the various manways to the lower levels, the employees in the mine including respondent, who was working on the 600-foot level, were unable to reach the surface. Eight, having taken refuge in the south drift, constructed a bulkhead to shut out the gas and smoke, while six others, including respondent, retreated to the end of the north drift, but did not attempt to construct...