Kangas v. National Copper Mining Co.

MORGAN, C. J.

Charles Nangas was killed by falling rock while employed by appellant as a laborer in its mine. This action was prosecuted by and on behalf of his widow and children on the theory that his death was caused by his employer’s negligence in that it, in violation of its duty to furnish him a safe place to work, carelessly and negligently put him to mucking and breaking rock in a large stope wherein it had failed and neglected to construct or maintain timbering, cribbing or any other means or device to prevent rock add ledge matter from breaking loose and falling; that the composition of the rock and ledge matter was such as to cause them to crack open, break and fall, which was unknown to Nangas and was well known-to appellant and its agents prior to and at the time of his death, and that he was not given any warning of the dangerous condition of the stope, or that rock and ledge matter were likely to break loose and fall upon him.

Appellant insists the evidence was insufficient to establish that the death of Nangas was due to its negligence. Its theory is his death was caused by an air-blast, which is a spontaneous outburst or explosion of rock in a stope or other underground excavation; that an air-blast is an act of God, or a force of nature which cannot be foreseen or guarded against, and that no liability for damage arises by reason of injury sustained from it; also that Nangas, as a part of the consideration of his employment, assumed all risks, dangers and damages which might be sustained by him in pursuing^ such employment as he was engaged in at the time of the injury which resulted in his death.

There are conflicting theories relative to the cause of air-blasts, and none of the witnesses who testified in this case pretended to know what produces them-. Their occurrence in the National mine, where Nangas was killed, is described by William M. Wagner, a witness called on behalf of appellant, as follows: <cQ. Were you ever present in the National mine when these occurrences of air-blasts happened ? A. Yes, sir. Q. On how many occasions? A. I could not tell you, but quite a number of them. Q. Quite a number? A. Yes. Q. Where in the mine did they occur, these blasts you observed? A. Well, they occurred in the drifts, in the raises and occurred in the stopes. Q. Will you state whether or not there was any way of determining when or where in the mine they would occur? A. No, sir. They would happen, that’s all anyone knows where or how. Q. If any warning was given when they occurred what was the first thing you noticed? A. There was no warning. It was over with, that’s all. There was an explosion and it was over with. Q. Happened suddenly? A. Yes, sir, happened right off. Q. Just describe such an occurrence to the jury? A. Well, would be working along and all of a sudden there was a big explosion, sometimes a big explosion in the rock and sometimes smaller explosions, would throw rock sometimes out any place; no warning at all. Q. What kind of an explosion? A. Sounded like a lifter, where powder was exploded in ■muck, kind of muffled sound, not really loud. Q. Do these air-blasts occur in the sides or back or roof? A. They occurred any place.”

The following additional facts were established: 1. Air-blasts, while not of general occurrence in the Coeur d’Alene district where appellant’s mine is situated, do frequently take place in some of the mines; 2. Prior to the death of Kangas they had frequently occurred in the National mine; 3. Appellant’s officers and agents knew they were to be expected.

If we adopt appellant’s theory, that the death of Kangas was caused by an air-blast and that it is a force of nature which cannot be foreseen or guarded against, still it owed to him the duty to warn him of that danger. (26 Cyc. 1172; Fortney v. Marblehead Lime Co., 173 Mo. App. 404, 158 S. W. 859; Devine v. Delano, 272 Ill. 166, Ann. Cas. 1918A, 689, 111 N. E. 742; Tully v. Grand Island Telephone Co., 92 Neb. 719, 139 N. W. 672; Baxter v. Roberts, 44 Cal. 187, 13 Am. Rep. 160.)

The rule that an employee assumes all ordinary and usual risks and perils incident to his employment 'is based upon a contract, express or implied, that he does so. (Baxter v. Roberts, supra.) In the absence of a contract to the contrary, he does not assume extraordinary or unusual risks, nor will he be presumed to have contracted to hold his employer blameless for injuries resulting from causes of the existence of which he was not aware.

The burden of proof was upon appellant to show that deceased was warned of such a nonobvious and extraordinary risk as is an air-blast, or that he knew of it and appreciated the danger from it. (Devine v. Delano, Baxter v. Roberts, supra; Savage v. Rhode Island Co., 28 R. I. 391, 67 Atl. 633; Duffey v. Consolidated Block Coal Co., 147 Iowa, 225, 124 N. W. 609, 30 L. R. A., N. S., 1067; Donahue v. Enterprise R. Co., 32 S. C. 299, 77 Am. St. 854, 11 S. E. 95; 4 Labatt’s Master & Servant, 2d ed., p. 4905, sec. 1608; Tarnoski v. Cudahy Packing Co., 85 Neb. 147, 122 N. W. 671; Williams v. Sleepy Hollow Min. Co., 37 Colo. 62, 11 Ann. Cas. 111, 86 Pac. 337, 7 L. R. A., N. S., 1170; Bjorman v. Ft. Bragg Redwood Co., 104 Cal. 626, 38 Pac. 451.) If Kangas, who had worked in that mine but a shift and a half when he was killed, had any knowledge, notice or warning that air-blasts had ever been known to or were likely to occur there, no evidence of that fact was introduced.

Appellant complains of certain instructions given and of the refusal to give others. The entire charge to the jury, when read and considered together, correctly states the law applicable to the facts in this case, and the action of the court complained of does not constitute prejudicial error. (Brayman v. Russell & Pugh Lumber Co., 31 Ida. 140, 169 Pac. 932.)

The judgment and order denying a new trial are affirmed. Costs are awarded to respondents.

Rice and Budge, JJ., concur.

Petition for rehearing denied.