Trihay v. Brooklyn Lead Mining Co. , 4 Utah 468 ( 1886 )

Powers, J.:

This is a ease in which the plaintiff recovered damages in the lower court, arising from the alleged negligence of his employer. In his complaint he alleged “that the defendant is a corporation, doing business, and having its principal place of business, in the territory of Utah; that the defendant, on the twenty-eighth day of August, 1885, was, and for a long time prior thereto had been, engaged in mining in Bingham mining district, in said territory, and was, and had been, as aforesaid, there working and operating the Brooklyn mine; that on said’day, and for a long time prior, thereto, the defendant employed, and had in its service, a large number of miners, timber-men, and others, engaged in sinking shafts, running drifts, stopes, and-inclines, and excavating and removing earth, ore, and rock; that the plaintiff, on the last day aforesaid, and prior thereto, was employed by and in the service of the said defendant as a timber-man, and in the said service was required to enter newly-worked drifts, stopes, and ground for the purpose of securing the same with braces and timbers, for the protection of said mine, and the security of the officers and servants of defendant.” It is further alleged that “on the twenty-eighth of August, 1885, and for some weeks prior thereto, the defendant, by its servants and employees, was, and had been, working and excavating in a certain stope on or under the underground level of said mine, known as the TlQO-foot level;’ that the ground in which said work was had was very heavy and dangerous, and, in order to secure the same from falling and caving in, it was necessary that the same should be braced and timbered as fast as tbe excavation progressed, and it was tbe duty of said defendant to cause said stope to be so braced and timbered as tbe said work of excavation progressed.” It is further alleged “that on tbe twenty-seventh day of August, 1885, and during all tbe night of said day, and tbe mor ning of said twenty-eighth of August, tbe defendant caused said stope of said mine to be worked and excavated, and large quantities of earth and rock tobe removed therefrom.” It is further alleged that “the defendant negligently and carelessly, and in violation of its duty in that behalf, failed to cause said stope to be braced and timbered when it had been newly worked; and negligently and carelessly, and ■ in violation of its duty in that behalf, suffered and permitted the same to remain in an unsafe and dangerous condition; that on the said twenty-eighth day of August, A. I). 1885, while said stope was unsafe, and in the condition aforesaid, the plaintiff was required and directed by the defendant to enter said stope, and to brace and timber the same; and thereupon the plaintiff, having no knowledge of the dangerous and unsafe condition thereof, did enter the same, for the purpose of timbering and bracing aforesaid, in accordance with the directions of the defendant, and immediately ■large quantitiesof earth and rock fell down from the upper part of said stope, and upon plaintiff,” and he sustained the injuries complained of.

• The answer of defendant, among other things, denies the alleged negligence of defendant, and alleges that said stope was not dangerous to timber and secure, with the exercise of ordinary care in the business of timbering; and that plaintiff had full knowledge of the condition of said stope, and the ground thereof, before he entered the same; and that the injuries received by him in said stope were wholly caused by his own negligence in the performance of his duties, and by his negligence in proceeding with the work of timbering said stope, and not from any negligence or want of care of the defendant.

The plaintiff was a timber-man, and on the morning of the twenty-eighth of August, while he was engaged in his duties in the stope, on the 1100-foot level, a block of lead fell upon Mm from the side of tbe stope, causing tbe injuries complained of.

Upon tbe conclusion of tbe plaintiff’s testimony tbe defendant moved for a non-suit on tbe following grounds: (1) Tbe testimony shows no negligence on tbe part of tbe defendant. (2) If there was any negligence on tbe part of defendant, there was such contributory negligence on tbe part of tbe plaintiff as to preclude a recovery: (8) If there was any negligence, it was that of fellow-servants of tbe plaintiff. (4) If tbe direction of the foreman contributed to the accident, no such cause of action is alleged in tbe complaint.

Among tbe errors assigned is tbe overruling of this motion by tbe court.

We think the motion for a non-suit was properly overruled. There was evidence tending to establish tbe fact that it was necessary to closely timber tbe mine at tbe point where tbe accident occurred, in order to make it safe, and that this was not done; that tbe foreman exercised control of tbe timbering, and that tbe plaintiff only carried out bis instructions; that tbe plaintiff relied upon tbe foreman’s judgment and direction in doing tbe work; that be bad never been in tbe stope where tbe accident occurred, and did not know that it was dangerous ground; that his attention was not called to tbe fact that the ground bad become extra-dangerous through neglect in timbering; that be executed bis work with due care; that tbe ground was very dangerous, and known to be by tbe foreman. These facts legitimately tended to establish tbe plaintiff’s case, and they were proper to go to the jury.

But it is contended that tbe plaintiff undertook, for an extra compensation, to perform a hazardous service. That is true, but be only contracted to take upon himself the risks incident to tbe employment. He did not agree to take extraordinary risks, growing out of tbe negligence of tbe company, and to which it bad not called bis attention. The employer owes to bis servant tbe duty of furnishing him a safe and proper place in which to prosecute bis work, so far as be is able to do so by the exercise of ordinary care and diligence. This duty be cannot delegate to an agent or servant, so as to excuse himself, or so as to escape responsibility to another, who has been injured by his non-performance. The degree of care exacted of the employer is in proportion to the hazards and perils of the service in which his servants are engaged. The more hazardous the employment, the more watchful and careful should the master be to guard against the danger or injury to his servants through insecurity or want of safety in the premises in which his servants are required to prosecute their work. The court, in this 'case, left the question of negligence, and of the want of due care, on the part of both parties, clearly and properly to the jury.

Among other things, the court charged the jury that—

“In determining whether or not there was negligence on the part of the defendant, or on the part of the plaintiff and defendant, it is proper to consider various things, so far as they are shown -by the evidence — such as whether the injury was the result of accident incident to the business, and occurring without negligence on the part of the defendant; the time when, and the manner in which, the danger was developed; the length of time it had existed; whether or not it was visible to either or both parties, or could, by reasonable care, have been discovered by either or both parties; the relative opportunity and duty of each party to discover the danger; and the relative and respective duties of the parties to guard against or remove the dangers when known, if it was known at all.

“A timber-man in a mine takes all the usual and ordinary risks of the work which arise out of the nature of the business, and .are likely to happen in the performance of his duties, and such risks are deemed included in the agreed rate of his compensation for his services; and, if you find that the plaintiff was injured only by the ordinary risk of his employment, the defendant is not liable for the injury. The plaintiff could not shift to the defendant the whole duty of providing for his safety, but it was his duty to be vigilant and careful in his own behalf, and to use a degree of care proportioned to the degree of danger in the ordinary discharge of his duties; and if you find the injury is the result of his failure to use ordinary care, or tliat by omitting to use ordinary care be contributed in any material degree to the injury, the defendant is not liable. If you find that tlie liability of tbe rock which hurt the plaintiff to fall was not visible on inspection, and could not, with reasonable care, have been observed, the defendant is not liable.

If you find that the rock which caused the injury was loosened, and fell in consequence of the plaintiff’s work in preparing to set timbers, the defendant is not liable. If you find that the danger of said rock falling arose from recent excavation of the ground in the ordinary course of mining, and that such danger was visible, and that the defendant did not know of the danger, and sufficient time had not elapsed so that, by ordinary care and inspection, the defendant should have ascertained the danger, the defendant is not liable. If the danger to which the plaintiff was exposed was visible, and was equally visible to the plaintiff and defendant, and in the ordinary course of his duties the plaintiff had opportunity equal or 'superior to that of the defendant to ascertain the danger, and failed to do so, or, knowing the danger, omitted to guard against it, the defendant is not liable.

If you find that the plaintiff’s duties, as timber-man, were to follow up the'miners, and timber such ground as needed timbering, then the nature of the employment implied that ground which needed timbers was unsafe or likely to fall or cave without timbers, and the plaintiff assumed all the ordinary risks of the work, and of timbering ground from time to time opened; and the defendant is not liable unless the injury to the plaintiff resulted from an unusual danger, known to and concealed by defendant, or which the defendant should have known and disclosed, and at the same time unknown to the plaintiff, and not discoverable by him by the use of ordinary care; and if you find that the foreman, Legg, told the plaintiff, shortly before the accident, to brace the rock which fell, such direction was notice that he considered it unsafe without such bracing, and your verdict should be for the defendant.

The plaintiff alleges in'his complaint, and it is admitted to be the fact in tbis case, that on the twenty-eighth of August, 1885, when he was injured, and prior thereto, he was employed by, and was in the service of, the defendant, the Brooklyn Lead Mining Company, in the capacity of a timber-man; and that in the said employment it was his duty to enter newly-worked drifts, stopes, and ground, for the purpose of securing the same with braces and timbers, for the protection of the mine, and the security of the employees of the defendant; and you are instructed that the plaintiff assumed all the ordinary risks and dangers incident to his said employment; and if you find that the injury to the plain tiff resulted from such ordinary risks or dangers, the defendant is not liable.

A servant or employee must possess a fair measure of skill for the service he undertakes, and he should inform himself of the duties and dangers peculiar to his work. It is his duty to go about his work with his eyes open. He may not wait to be told to use care for his safety. He must act affirmatively, and use ordinary care to learn the dangers which are likely to beset him in the service. He must not go blindly and heedlessly to his work, when there is danger. He must use care to inform himself. He is held by his contract of hiring to assume the risks of injury from the ordinary dangers of the employment; that is to say, from such dangers as are known to him, or are discernible by the exercise of ordinary care on his part, and such as are incident to the work, though unknown, and not discernible. If he knew the danger, or,, by ordinary care on his part, he could have discovered it, the employer is not liable for injury resulting therefrom; and if you find that the injury to the plaintiff resulted from a danger incident to his employment as timber-man, and that such danger was either known to him, or by the exercise of ordinary care on his part, he could have discovered it, the defendant is not liable, and your verdict should be for the defendant.

If you believe, from the evidence, that when the foreman, Legg, and the plaintiff were in the stope together, on the twenty-eighth of August, a short time before the accident, Legg called the plaintiff’s attention to the shat-terecl or loose condition of tbe rock inside of tbe stope, from wbicb tbe rock subsequently fell on tbe plaintiff, and directed or suggested to tbe plaintiff tbat be bad better put in a brace to bold up and secure said rock while be was engaged in timbering tbe stope, and tbat plaintiff neglected to do tbis, tben your verdict must be for tbe defendant.

“If you find, from tbe evidence, tbat just before tbe accident to tbe plaintiff, on tbe twenty-eigbtb of August, McLauren, tbo miner wlio was working in tbe stope with Johnson, called the attention of tbe plaintiff, Tribay, lo tbe shattered or loose condition of tbe rock in the side of tbe stope, and suggested tbat be, tbe plaintiff, should either brace up said rock or take it down before be began to timber said stope, and tbat plaintiff neglected to do so, be assumed tbe risk of bis work, and your verdict must beffor the defendant.

“If you believe, from tbe evidence, tbat tbe plaintiff, Triliay, at and before the time of tbe accident, on tbe twenty-eigbtb of August, either knew, or, by tbe exercise of ordinary care and diligence, could have known, of tbe shattered and unsafe condition of tbe rock in tbe side of tbe stope at or near tbe places where be was engaged in putting in tbe stull, which rock subsequently fell on him, and tbat he neglected to take any precautions against tbe danger of its falling while be was so engaged, your verdict should be for tbe defendant.

“If tbe jiiiy believe, from tbe evidence, tbat tbe injury to tbe plaintiff, Triliay, was alone tbe result of tbe carelessness or negligence of tbe timber-man, McG-ivney, or of tbe miners on tbe night-shift in tbe black stope, or of tbe miners Johnson and McLauren, or either of them, tben they are tbe fellow-servants of tbe plaintiff, and tbe defendant is not liable to tbe plaintiff for such negligence.”

This charge certainly protected tbe defendant in all its rights, and left tbe case squarely to the jury, as a question of fact. That the case was properly left to tbe jury we have no doubt. In tbe case of Cunningham v. Union Pac. R'y Co., ante p. 206, wbicb, we think, rules tbis case, we said: “In tliis case there was evidence from which negligence upon the part o'f the defendant might be inferred. At least, there was sufficient to submit to the jury. The coal which fell was left overhanging the gangway some three feet. This the foreman of the mine knew, but he took no steps to remove it, or to protect it by timbers. He was aware that coal hanging from the roof, while it might seem safe one moment, was liable to fall the next. It was his business to report ■ the condition of the mine from day to day to the superintendent, and it will be presumed that he did his duty. It was therefore proper for the jury, in view of all the facts, to find whether the defendant had been negligent or not. Under our system of jurisprudence, it is the province of the jury to pass upon the facts. It is not only their privilege, but their rightj to judge of the sufficiency of the evidence introduced, to establish any one or more facts in the case on trial. The credibility of the witnesses, the strength of their testimony, its tendency, and the proper weight to give to it, are matters peculiarly within their province. The law has constituted them the proper tribunal for the determination of such questions. To take from them this right is to usurp a power not given. The jury should be left free to act upon questions'of fact. 'When there isa total defect of evidence"as to any essential fact, or a spark —a ‘sciniilla,’ as it is termed — the case should be withdrawn from the consideration of the jury. When, however, the evidence introduced has a legal tendency to make out a proper case in all its parts, then, although it may, in the opinion of the trial court, or the appellate court, be slight, inconclusive, and far from satisfactory, yet it should be submitted to the jury, whose proper province it is to consider and determine its tendency and weight.” In the same case we also said: “Another point is made; that, if negligence was the cause of the injury, it was the negligence of the foreman, a fellow-servant of the plaintiff. The foreman had the entire charge and superintendence of the mine underground. Notice to him was notice to the company. ... It being the defendant’s duty to exercise reasonable diligence in keeping the gangway in a safe condition, it could not absolve itself of that duty by delegating it to others.”

As we have suggested, we are of -the opinion that the case to which we have referred rules this, and disposes of the questions raised. Counsel for respondent argued, with ability, that this court has no jurisdiction to review and pass upon the evidence, or the sufficiency thereof, because, under section 1 of article 7 of amendments to the constitution, it cannot re-examine any fact tried by a jury. It not being necessary for us in disposing of this case to determine this question, we express no opinion thereon.

Judgment must be affirmed, with costs.

ZANE, C. J., and Boreman, J., concurred.