DocketNumber: Docket No. 63
Citation Numbers: 177 Mich. 669
Judges: Bird, Brooke, Kuhn, McAlvay, Moore, Ostrander, Steere, Stone
Filed Date: 12/20/1913
Status: Precedential
Modified Date: 9/8/2022
Plaintiff brought suit for damages for personal injuries received while he was employed by defendant company as a miner in the Eureka mine, operated by it. The result of the trial was a verdict instructed by the court at the close of plaintiff’s ease in favor of the defendant, upon which a judgment was entered. Plaintiff seeks a reversal of this judgment upon the ground that the trial court was in error in directing a verdict against him.
The case has already been before this court, brought here by defendant to review an order overruling a demurrer to the first count of plaintiff’s declaration, when this court affirmed the judgment sustaining the declaration. Panela v. Mining Co., 165 Mich. 329 (130 N. W. 686). An examination of the opinion of the court rendered at that time will be helpful in the consideration of the instant case.
The facts in the case cannot be stated briefly in order to give the information necessary to its proper consideration, and for that reason the statement of facts presented by the appellant is adopted. This statement is accepted by the appellee for the most part as correct. Reference will be made to its objections later in this opinion.
“Statement of Facts.
“On and before September 17, 1909, defendant was operating the Eureka mine, working the seventh and other levels, and extending No. 3 shaft, which was a steeply inclined 3-compartment shaft, 12x9 feet in
“Three crews of miners, each consisting of 5 men and a foreman, and who worked 8-hour shifts, commencing at 7 a. m., 3 p. m., and 11 p. m. each day, were engaged in extending the shaft under a contract with defendant by which they were paid $25 per foot for sinking, and were required to use dynamite, and defendant was to furnish the necessary tools and materials to do the work and convey the miners to and from the bottom of the shaft, and provide them with signaling apparatus, to give signals to be hoisted by the hoisting apparatus. These men relied upon defendant to promptly and safely hoist them by means of the truck and bucket hereinafter mentioned when they signaled from below to move the truck and bucket, especially when explosions were about to take place, and expected that the signaling apparatus would be in such shape that the signal would be promptly and properly transmitted by it,' and the hoisting apparatus would be in such shape that it could be promptly operated. They had no voice in the selection of a foreman or the fixing of his wages, and, when one of them quit or was discharged, defendant hired another without consulting the miners. Defendant figured out what each man had coming and paid him at its office.
“The outgoing and incoming crews generally met at the seventh level. The twelfth level was an unsafe place to stay while blasting was going on. None of the members of the several crews would know what had been done in the bottom of the shaft by any other crew unless specially warned by some one else of it. Dynamite might be scattered around there, owing to missed holes or its being left there by other crews, and, in either case, would be dangerous to everybody
“In the middle compartment of the shaft was a track, upon which was operated a truck (6 feet long, with a frame and pulley) and the bucket (2% feet in diameter and height), by means of a puffer engine, drum, and cable. The puffer and drum were in the same building in which the skip engine was; there being only a partition between the two engines. This building was 115 feet from the shaft house. The cable ran from the drum to a sheave in the frame of the truck and to the bail of the bucket. A pole placed
“There was a ladderway in the shaft above the top of the twelfth level, but below the seventh level it was in a poor, broken condition, especially near the bottom. A person who climbed through the shaft would have to climb part of the way on the sets, and that was dangerous. There was but one way provided for men to get into and out of the bottom of the shaft, and that was by means of the truck and bucket. The only ladder down there was a poor, short one, which only reached to where the truck stopped.
“The signaling apparatus used in connection with the truck and bucket consisted of an electric bell having an 8-inch gong, which was worked with a magnet, was operated by dry cell batteries, and was attached to the wall of the engine house near the puffer, where there was considerable vibration. Two separately insulated wires ran from it down through the shaft and were attached to the shaft down to a point about 40 feet from the bottom. They were loose from there down. About 3 inches of the insulation was removed from the bottom end of each of the wires. The bell was supposed to ring in the engine house each time the two bare ends of the wires were touched or rubbed together; a long bell was given by holding them together. At blasting times the wires were rolled and carried up the shaft 30 or 40 feet and signals were given from there, and the wires left there to prevent their injury by the blasts. The miners had no opportunity to see the apparatus in the engine house.
“The dirt was loosened in the shaft by drilling holes 7 or 8 feet deep and 2% inches in diameter, with air drills, loading them with dynamite, and blasting them by means of caps and fuse. The dirt was hoisted to the seventh level. Each crew worked in sets of two. One set worked in the middle and one in each end of the shaft. Each set was supposed to attend to their own sections and pay no attention to the sec
“The customary way of doing the work of blasting there was to first clean out the hole, then put the exploder in the bottom, then take other sticks of dynamite, slit the wrappers so they will spread out when tamped, place them on top of the exploder, and tamp them down. The holes are filled with dynamite to about 11/2 feet from the top and then fine, dirt or rock is put on top of that. A missed hole is loaded in the same way, but the dynamite sometimes comes 6 inches or closer to the top of the hole. After the dirt or rock is put on, none of the powder is exposed. Dynamite can catch fire from the spitting (sparks) of the fuse. It burns slowly, not much faster than fuse. The exploders were prepared on surface and brought down in a box, with the dynamite, in the bucket. After the holes were about ready to load, two men went to surface and got the explosives. After getting them, the two men would go down the shaft and one of them would get off at the seventh level to turn off the air and the other would go down to the last set and then roll or carry the wires up about 40 feet in the shaft and stay there. The bucket would go down to the bottom and the men there would get the dynamite and exploders, load the holes, split the fuses, and get ready to blast, and then two of the men would go up on the truck or the short ladder and pull the ladder up and put it on the sets. The six men would then be thus stationed: One at the seventh level; two in the bottom of the shaft; one 40 feet above the bottom; and two on the truck. The bucket would be in the middle of the bottom of the shaft. Santi and Latvala usually lighted the fuses on plaintiff’s shift. When they were ready to light them the fire signals would be given.
_ “Holm was the foreman, and plaintiff, Maki, Rusciolelli, Santi, and Latvala were the miners, in plaintiff’s crew. Plaintiff had limited experience in mining but had been working in this shaft about a year. September 17, 1909, this crew went to work at their usual time, 7 o’clock a. m., and met the outgoing crew at the seventh level. There were five missed holes left in the shaft by some preceding shift. It appears that the outgoing crew knew that, and so informed plaintiff’s foreman. When plaintiff’s crew got to the bottom they found a quantity of dirt which had been loosened by one of, but not removed by, the other shifts. It took plaintiff’s crew about an hour to remove this dirt. Plaintiff and Latvala worked in the west end, Santi and Rusciolelli in the east end, and Holm and Maki in the middle of the shaft. No new holes were drilled that morning. Plaintiff and Latvala found five holes in the west end, not missed holes, but holes which had been blasted before; Santi and Rusciolelli found only three missed holes; but they also found some other holes (Rusciolelli could not say how many) in the east end. There were no holes in the middle. Plaintiff and Latvala together examined
“When Santi and Latvala were all ready to blast, they directed Maki to give the fire signals, and he did so. Santi and Latvala had their candles all ready to light the fuses. When Maki had given the fire signal he told them so. Santi and Latvala then asked each other if they were all ready, if all the fuses were split, and if they had them in their hands. They each said they were ready, and they lighted their fuses all together in the customary way; Santi lighting those in the east end and Latvala those in the west end. Santi was facing east and was right on the east side of the bucket and the holes were east of him, when he lighted the fuse. It took them two or three seconds to light the fuse. Just as soon as they lighted the fuses, they told Maki to give the signal to hoist the bucket, and he immediately started to do so. He rubbed the bare ends of the wires (which were then clean and bright) together seven times in the custom
“An explosion occurred in the bottom of the shaft about the time when Maki finished giving the third of the seven-bell signals. The bucket did not start until after the first blast, or until at least three minutes after the first of the seven-bell signals was given. There was a delay of several minutes more than usual. The truck was not hoisted until about five minutes after the first blast occurred. Benny, the engineer of the puffer at the time, testified that only two ‘dings’ of the bell in the engine house, with an intermediate quivering of the hammer, resulted from Maki’s efforts to give all those seven-bell signals. There was a conflict in his and the miners’ testimony respecting the time of starting the bucket. Benny claims that after he had raised the bucket two or three feet, he felt a jar, which he ascribed to an explosion in the shaft.
“Neither plaintiff nor Maki saw, were told, heard, or knew that there was any missed hole or holes in the bottom of the shaft that morning, and plaintiff did not know of any danger from missed holes until the time of the blast. Neither of them was over in the east side of the shaft that morning. No dynamite was left in the shaft that morning by anybody in plaintiff’s crew except what was put in the holes.
“Rusciolelli got into, and plaintiff was trying to get into, the twelfth level when the first blast occurred. Santi and Latvala were killed, the plaintiff was frightfully and permanently injured, Rusciolelli was nearly smothered, and Maki was injured, as a result of the explosions. The blasts occurred about 10 o’clock a. m. Holm climbed down from the seventh level to assist the men in getting out. A man came up on the skip from the seventh level to surface and reported the accident, and Benny was then at the shaft and very much discouraged.
“The testimony of defendant’s master mechanic shows: That this puffer engine was an old, secondhand one, purchased from the Chicago House Wrecking Company. In May, 1909, one of the teeth fell out of the gear and dropped in between two wheels and caused the bending of the shaft, which affected the throw of the valves, made the engine lame on one side, caused it to run in a jerky manner, and caused the friction to slip. The puffer was in bad condition all the time he was there after May, 1909. Although an attempt was made to repair it and straighten the shaft, the shaft did not stay straight, and the engine never worked well afterwards. Frequent complaints were made to him of the bad condition of the engine before September 17, 1909, and about twice a month he called the superintendent’s attention to the bad condition of the engine, and advised a new shaft and gear wheel, but nothing was ever done about it; the condition of the pipe line which carried steam to the puffer (which was 600 or 800 feet long and had 13 quarter-turns in it, when it should have been straighter and shorter) was such that water would accumulate *in the cylinder, and the engineer had to be very careful in starting, and start slowly, in order not to knock' out the cylinder head.
“Benny, although claiming otherwise at times, admitted that the puffer was not in right condition; that it would start quick at certain places; might jerk; was not in good shape; did not work as it was supposed to; was out of repair; did not run very steadily;
“ ‘Q. Was the engine prevented in any way from immediately beginning to work by any condition of its boxes or bent shaft?
“ ‘A. Yes, sir.’
“The spring and magnet of the bell used in connection with the truck and bucket were not covered with a removable cover, but were wholly uncovered. They should have been so covered. Such a bell is a complicated piece of machinery and requires constant attention and inspection to keep it in condition, and should be thoroughly inspected at least once a week and casually looked over every day to see that there is no dirt at any place where it might affect it; to see that the wires are in proper condition, that the springs are not too tight or too loose, and that there is no corrosion in the base of the clapper or elsewhere which would be liable to interfere with the working of the bell; to see that the platinum point is not burned through where the contact is, that there are no loose contacts, that the coil of the bell does not get open, and that there is no give to the springs. The coils should be sharply looked over at least once a week and kept clean by passing some sharp instrument over the ends of them. Dirt and corrosion might be in such a place, or in such a state or condition, in the bell, or so caught or accumulated in the bell, as to at any time temporarily put the bell out of order so that it would not respond for a few minutes, and afterwards would respond. That the bell rings clearly would not justify failure to test and examine it. If the bell was not carefully inspected once a week in the manner above stated and looked over every day, the chances are that the bell would fail to respond. Without a cover and this examination and inspection, the bell would be unsafe to use for the purpose for which the bell in question was used. The bell might also fail to act, when the bell itself was in good condition and proper connections were made at the bare ends of the wires, by reason of the condition of the wires in the shaft. The batteries should also have been frequently tested with a voltmeter and ammeter
In a few instances counsel for appellee in their brief have questioned the accuracy of certain portions of this statement and have referred the court to pages of the record claimed to support their objections. The witness Benny, the engineer, whose duty it was to operate this hoisting apparatus in response to signals on the electric bell in his room, given to him by the miners working at the bottom of the shaft, was an employee of defendant company. He was called by plaintiff for cross-examination under the statute. A careful reading of his testimony discloses that the portions of the statement of facts of plaintiff, objected to, which refer to him are supported by his testimony, and that as to the other portions objected to, which would require too much space for extended comment, they are all fairly supported by the testimony.
In the examination of this record the fact must be kept constantly in view that a verdict was directed by the court against plaintiff, and the rule that the
The question to be determined by this court is not as to to the weight of the evidence produced on the part of plaintiff but whether there was evidence which should have been submitted to the jury for consideration.
In the opinion handed down in this case when it . was here upon demurrer, as cited, supra, where the construction of the first count of the declaration was under consideration and the issue presented by the pleading was stated, Chief Justice OSTRANDER, speaking for the court, said:
“With regard to the hoisting apparatus the declaration appears upon analysis to be sufficient to warrant the introduction of testimony and to support a recovery in accordance with the following construction which we place upon the language employed. The defendant had furnished a single method of conveying men to and from the seventh level [bottom of the. shaft] of the mine. A part of the apparatus and machinery was the one for signaling, by the use of which men in the mine might convey to others on the surface notice of a desire to be taken from the mine or from the particular level. It was the duty of defendant to maintain all of this apparatus and machinery in a condition suitable to prompt action and service, and a duty to promptly respond to signals indicating that the men on the seventh level [bottom of that shaft] desired to leave that level [place]. Proper signals were given, or were attempted to be given, by means of the apparatus provided, upon the occasion in question, by plaintiff or by some of the men with whom he was employed. They were not responded to. The failure to respond contributed to plaintiff's injury, because he was thereby prevented from avoiding or escaping the results of an explosion. The failure to respond was due to some fault, defect in, or some failure of the machinery and apparatus described. We think plaintiff is not required to point*682 out the particular fault, defect, or cause of failure. He could not be reasonably expected to know whether the signals were received at the surface — whether the apparatus for signaling failed, or whether an employee disregarded them if received, or whether in attempting to send the cage, or car, for the men, in answer to the signals, some part of the other machinery or apparatus was found to be defective or otherwise at fault. * * * All crews used explosives. It was the duty of defendant to notify plaintiff if the members of another crew left explosives in the shaft, because, if such notification was not given, there would exist an unknown, and perhaps undiscoverable, hazard to which plaintiff should not be exposed: This is the reasonable meaning.”
The opinion further stated:
“But this construction is the one to which plaintiff should be limited in the introduction of testimony, and indicates the issue presented by the pleading to which plaintiff is restricted.”
No question has ever been raised as to the sufficiency of the second count, which in substance avers the defendant’s duty to furnish plaintiff reasonably safe means of egress from the shaft at all necessary times and to convey plaintiff to a place of safety at any time of danger from explosions, and that it undertook to perform this duty by providing hoisting and signaling apparatus and devices. A failure to perform each of these duties was duly assigned. No questions now arise upon the pleadings.
It will be unnecessary to'quote at length the reasons given by the court in directing a verdict against plaintiff, nor will it be necessary to discuss at length all of such reasons. If the court was in error in any of its conclusions, plaintiff is entitled to a reversal.
We will first consider plaintiff’s contention that there was evidence in the case to submit to the jury upon the question of negligence charged against defendant in failing to maintain the signaling ap
“Because the signaling apparatus could not be relied on, Benny, the engineer, was instructed by defendant to hoist on any signal after the long bell.”
These objections have all been considered generally, but this is a very important matter bearing upon the unreliable condition of the signaling apparatus known to defendant and requires specific consideration. We find in Benny’s testimony, referring to these instructions, which he at times speaks of as an agreement, the following:
“Q. Then why did you make this agreement to hoist on any other signal?
“A. It was an agreement that perhaps it would not ring right sometimes.
“Q. You could not rely on the bell?
“A. Sometimes on the bell, sometimes perhaps it was the ring.
“Q. You could not rely on the bell?
“A. I could not rely on the ringing either.
“Q. You could not rely on the bell or.the ringing?
“A. No, sir. * * * We made this agreement to hoist upon any bell after that long, long bell before I started to work. Those were my instructions before I started to work.”
Whatever modification he may have made as to any of' his testimony is of no importance in determining whether there was evidence to support plaintiff’s contention.
The portion of the statement of facts, objected to above, gives, we think, a fair inference to be drawn
“It just went ‘ding’ and then the hammer of the bell trembled and did not make any sound, didn’t strike the bell, and after a pause it struck hard enough to make another ‘ding.’ There were two ‘dings.’ ”
There is evidence that an electric bell should be covered to keep out the dust, and that it should be inspected frequently to ascertain its condition; that the screws will jar loose and it will not answer signals. There is evidence in this record tending to show a lack of proper inspection. It tends to show that Benny, who knew nothing about such apparatus, who was the one who ordinarily inspected the bell, never paid attention to it unless something went wrong.
The testimony relative to giving the required signals from 40 feet above the bottom of the shaft- is not disputed and tends to show that the uncovered ends of the copper wire were bright and that all of the signals were attempted to be accurately transmitted. Therefore it cannot be said, in our opinion, that there was no evidence to submit to the consideration of the jury upon the question of the imperfect condition of the signaling apparatus.
The record shows without dispute that the foreman of each shift was required to give warning to the succeeding foreman if missed holes had been left in the shaft. It is contended by plaintiff, and the record
It is contended by plaintiff that the negligence of the foreman of the preceding crew and of plaintiff’s crew, to whom was delegated the duty to warn plaintiff and other members of the crew of explosives left in the bottom of the shaft, and also the negligence of the operator of the hoisting apparatus, was the negligence of defendant; that the duty to warn and the duty to promptly operate the hoisting apparatus when signaled were nondelegable duties, and the persons empowered to perform such duties were vice principals and not fellow-servants of the plaintiff.
The fundamental principle that it is the duty of the master to furnish a safe place for the servant in which to work is thoroughly settled, as is also his duty to continue to keep the place safe, and—
“That this duty is one which cannot be delegated by the master so that the employee engaged to do the work of making the premises safe is to be treated as a fellow-servant of those who are employed and engaged in the general work for which the premises are intended.’ Beesley v. F. W. Wheeler & Co., 103 Mich. 211 (61 N. W. 658, 27 L. R. A. 266).
Numerous decisions of this court to the same effect might be cited. See, also Orso v. Engineering Co., 164 Mich. 568 (129 N. W. 673), and cases cited.
The other proposition is that the engineer, whose duty it was to operate and control this hoisting ap
It is apparent that under the contract of employment the duty of the defendant to the plaintiff to continuously provide him a safe place in which to perform his work could only be fulfilled by the performance of such duty by means of signaling ■ apparatus, the engineer, and the hoisting apparatus, and a failure in any respect in such performance, for any reason, by any of these instrumentalities, would of necessity be a failure in the performance of an absolute duty imposed upon the employer. It is not disputed
In the case of Kaukola v. Mining Co., 159 Mich. 689, at page 699 (124 N. W. 591), Mr. Justice Stone, speaking for the court, said:
“The lighting of this passageway or thoroughfare of the mine, far distant from the working place of those who passed through them — it being always dark in the mine — was just as necessary for the safety of the men as it was to have the walls and floors in a proper condition. It was one of the 'instrumentalities’ which it was necessary to provide to enable the men to do their * * * work safely. It was a thing which it was necessary to keep permanently in condition. Unlike the case of Livingstone v. Plate Glass Co., 146 Mich. 236 [109 N. W. 431], here the place furnished was a permanent place of work, and not one where the conditions were constantly changing. Here, in our opinion, the rule of a safe place to be furnished by the master applies. In Cristanelli v. Mining Co., 154 Mich. 423 [117 N. W. 910], it was held that the engineer of a mining hoist, in so far as it is his duty to keep the place safe, is not the fellow-servant of an employee engaged in loading machinery upon the skip at the collar of the shaft.”
There is evidence in . the case on the part of plaintiff tending to show the negligence of the engineer, who operated this hoisting apparatus, in not acting promptly on receiving the first stroke of the bell he was waiting for, both in his own testimony and the testimony of the miners at the bottom of the shaft. The engineer’s negligence was a question of fact and, if established, was the negligence of a vice principal to be imputed to the defendant. This question should also have been submitted to the jury.
The judgment of the circuit court is reversed, and a new trial ordered.