Sampson Mining & Milling Co. v. Schaad , 15 Colo. 197 ( 1890 )

Me. Justice Elliott

delivered the opinion óf the court.

That it is the duty of employers engaged in extracting ores from the bowels of the earth to exercise reasonable diligence to keep their mines secure from danger to their employees, and that miners engaging in such service assume the ordinary risks and perils incident to such employment, are legal propositions which were accepted as correct in the court below as well as on this appeal.

Considerable evidence was given at the trial by persons of learning and experience in timbering mines, showing how timbers should be placed in and about the walls and roofs of mines in order that the same might be reasonably secure from danger. This evidence was for the purpose of establishing, in the minds of the jury, a standard by which they could determine whether or not the defendant company had discharged its duty to its employees by providing them with a reasonably safe place to perform them service, considering the nature of their employment. Evidence was also admitted tending to show that the timbers in defendant’s mine were not placed in proper position to make a reasonably strong and secure roof; and, in this connection, evidence was admitted against the objection of defendant showing the position or angle at which the stulls were placed in, upon or against the walls of the mine adjacent to the place of the accident, as well as the position of the particular stull which gave way.

It might be impossible to show with certainty, by direct evidence, the precise position which the fallen stull occupied before the accident, so as to determine whether there was or was not negligence in placing the same in the roof. Hence, it was .proper to admit evidence showing the construction of other, parts of the roof adjacent thereto so far as such other parts could be shown to have been constructed in a similar manner. Erom such data a legitimate inference might be drawn as to the cause of the roof giving way as it did. It was not error to admit such evidence.

It is insisted by counsel for appellant that the evidence is not sufficient to sustain a finding of negligence against the defendant company; and that, even if the evidence would justify such finding, it also shows plaintiff to have been guilty of contributory negligence, inasmuch as he had been employed as a workman in and about the mine at different times for a considerable period before he was injured.

The plaintiff’s employment was to haul ore from the in- ■ terior of the mine to the ore-house by means of a vehicle called a “tram.” In mining parlance, he was called a “ trammer.” He was not a skilled miner, but a common laborer. He did not profess to be skilled in timbering mines; nor does it appear that his duties required that he should be; neither does it appear that he had anything to do with constructing the roof which fell, or. any part thereof. His means of knowledge concerning its condition, therefore, was simply a matter for the consideration of the jury in determining the question of contributory negligence. Wells v. Coe, 9 Colo. 167.

■We have carefully examined the evidence. It is somewhat conflicting, and it may be admitted that the jury would have been warranted in rendering a different verdict. We do not, however, perceive any clear and substantial reason which would justify an appellate court in exempting this case from the application of the rule that questions of negligence and contributory negligence are generally questions of fact to be determined by the jury under proper instructions from the court upon matters of law. Electric Co. v. Lubbers, 11 Colo. 508; Lord v. Refining Co. 12 Colo. 393.

All questions of fact were fairly submitted to the jury by the charge of the trial judge. Ho objection whatever is urged on this appeal against the instructions. The judgment of the district court-must accordingly be affirmed.

Affirmed.

Me. Justice Hayt, having presided at the trial below, did not participate in this decision.