Western Inv. Co. v. McFarland

• Decision Date: 03 December 1908
• Docket Number: 2,807.
• Citation: 166 F. 76
• Parties: WESTERN INV. CO. v. McFARLAND.
• Court: U.S. Court of Appeals — Eighth Circuit

166 F. 76

WESTERN INV. CO. v. McFARLAND.

No. 2,807.

United States Court of Appeals, Eighth Circuit.

December 3, 1908

Julian G. Dickinson, for plaintiff in error.

J. E Ferguson and Charles C. Butler, for defendant in error.

Before HOOK and ADAMS, Circuit Judges, and PHILIPS, District Judge.

ADAMS Circuit Judge.

This was an action for damages alleged to have been occasioned by negligence of the defendant, the Western Investment Company which resulted in the death of its employe, plaintiff's husband, Samuel McFarland. The negligence charged was generally speaking, failure to use proper care in providing a reasonably safe place for decedent to work in. The defense consisted of a denial of the alleged negligence, contributory negligence, and assumption of risk by the decedent. There was a verdict and judgment for plaintiff, and defendant prosecutes error.

The complaint charged, in substance, that the decedent was put to work by defendant's superintendent in a stope of its mine to shovel ore accumulated there into chutes extending through the lagging or floor of the stope to tram cars below; that the place was dangerous by reason of loose rock on the hanging wall of the stope liable to fall at any time; that this condition of things was unknown to and unobservable by the decedent, but known to or ought to have been known by the defendant; that while decedent was so at work, and without fault on his part, a rock fell from the hanging wall and killed him.

Defendant for answer denied generally plaintiff's statement of facts, but admitted that decedent 'was employed by the defendant to work in said stope, and that while working in said stope a rock became detached from the hanging wall of said stope and fell down, striking said Samuel McFarland,' by reason whereof he died.

Defendant's main contention, that the trial court erred in not instructing a verdict in its favor, is urged before us for the following reasons: (1) That there was no evidence of negligence as charged in the complaint; (2) that the place where decedent was put to work was constantly changing as respects safety by the work done by him; (3) that the cause of the falling of the rock was not proved, but left uncertain and conjectural; (4) that if the rock was loose in the hanging wall it was a latent defect which could not have been discovered by defendant by the exercise of reasonable care; (5) that decedent by going to work in the stope assumed the risk of the injury which befell him.

The first and third reasons, that the proof failed to establish the alleged negligence, but left the cause of the falling of the rock doubtful and conjectural, being really one, will be considered together and first disposed of.

The stope in which decedent was put to work was what is known as a 'filled stope'; that is, the ore had been shot or broken down by the machinemen from the back or top of the stope, and had filled the space below from the lagging or floor upwards, leaving space only sufficient for the machinemen to stand while breaking down the ore. This accumulation of ore, or 'muck' as it is called in mining parlance, had so filled the space worked out in the process of stoping upwards between the hanging and foot walls of the vein as to afford an effective brace or protection against loose rock in the hanging wall as long as it was permitted to remain there intact. The mining operations-- that is, the machine work-- had ceased some considerable time before the events involved in this suit, and muck from 10 to 15 feet deep had accumulated at or near the place where the decedent was subsequently killed. The southern part of the stope, with which alone we are concerned, had three narrow chutes cut through the lagging or flooring of the stope to guide the ore into tram cars beneath. These chutes were located some 19 feet apart, and were about 3 1/2 feet wide, extending the width of the stope 5 or 6 feet in length, and were employed for drawing off the accumulated muck so as to load it and tram it to the shaft. Two of these chutes had been opened, and such of the muck immediately above the openings as would fall by gravity had been drawn off and trammed away before decedent went to work there. This operation left two practically vertical walls of muck extending up on each side of the chute to the top of the pile, and, as no more muck would drop by gravity into the chute when opened, it became necessary to shovel it into the chute from the top of the pile when required for tramming. The decedent was put to work on the top of one of these piles to do this shoveling, and had worked a little over an hour when the rock fell which killed him.

Is there any substantial evidence tending to show that the rock fell as a result of defendant's negligence? If so, the case was properly submitted to the jury, and its verdict is conclusive of that fact. The usual way of guarding against the falling of rock in mining stopes is to brace the walls against each other by timbers or stulls as the stope progresses upwards. But in operating filled stopes the muck takes the place of stulls, and usually affords sufficient protection as long as none of it is drawn off; but when drawn off, the walls, being left without support, manifestly require timber or other protection if there be any loose or threatening rock in the walls.

Evidence introduced by defendant tends to show that as the stope was drawn off, or at any other time, no dangerous or loose rock was or could be discovered, and that every precaution was taken to protect the hanging wall against falling. But a careful reading of all the evidence satisfies us that there was substantial evidence to the contrary. Mr. Thompson, the defendant's superintendent, testified that the only safe way...