Electric Plaster Co. v. Reedy

SYLLABUS BY THE COURT. 1. Master and Servant — Death by Wrongful Act — Risk Not . Assumed. In an underground gypsum mine not operated under the mining laws of the state the superintendent, whose duty it was to direct the operations of the miners and to locate where shots should be placed, ordered the deceased and others immediately before a shot was fired to go for safety into a room directly opposite a thin wall where the shot was located, under the belief that the wall or pillar was much thicker than it actually was, and that the force of the shot would therefore break into another part of the mine instead of breaking through where it did, resulting in the death of the deceased. Held, that it was the duty of the superintendent to know the actual thickness of the pillar and the probable consequences resulting from the shot being so placed, and that the risk was not one which deceased had assumed. 2. - Contributory Negligence — Question of Fact. In such a case the question of the contributory negligence of deceased is one of fact which, having been fairly presented in the instructions, is determined by a general verdict in favor of plaintiff in an action against the mining company for wrongful death.

Error from Marshall district court; Sam Kimble, judge. STATEMENT. In an action for the benefit of herself and minor child defendant in error recovered a judgment of $5000 for the death of her husband, William R. Reedy, who was injured March 24, 1904, by the explosion of a blast in plaintiff in error’s mine. His death occurred two days after the accident. The plaster company brings error. Plaintiff in error is engaged in mining gypsum at Blue Rapids, and in the manufacture of gypsum plaster. The mine is what is known as a drift, or tunnel, mine. A long corridor, or main tunnel, runs in a northerly direction from the main shaft at the south, and there are a number of air-shafts. The gypsum is mined from rooms off from the main tunnel. The entrances into these rooms are made at intervals, generally leaving, as supports to the roof, pillars twenty-five or thirty feet in thickness between the main tunnel and the rooms. The method of making the rooms is to drift in from the side of the main tunnel a distance of twenty-five or thirty feet and then to extend the opening in a direction parallel to the main tunnel, when another opening is made into the main tunnel, leaving the partition or pillar. Some of the miners work by the ton, in rooms assigned to them individually, and each of these rooms is known by the name of the miner who works in it at the time. Others work by the day in the main tunnel or in rooms known as “company” rooms; generally two miners, together with an expert miner, who directs or “spots” the shots, or blasts, after the holes are bored. The gypsum mines are not operated under the mining laws of the state, but the rules of the company require that warning be given of all shots in time for the men to seek a place of safety, and this regardless of whether they are working in separate rooms or in the main entry, or tunnel, or in “company” rooms. The deceased, William R. Reedy, at the time of the accident was employed by .the day at the mine, and was at work on the afternoon of that day in the “Marcy” room, laying track. Previously he had been at work in what was known as the “Blossom” room. He had laid track in the “Blossom” room in the forenoon. He was an expert miner, and his duties had included the locating, or “spotting,” of shots arid the firing of them. The superintendent of the plaster company was' Al. Shinn, who was in charge of the mine. Among other things it was his duty to direct the men in their work, to locate where the shots were- to be placed, and to give orders as to what direction the rooiris and openings should take. He also directed the men where to go for safety when shots were to be fired. On the east side of the main tunnel the “Blossom” room was being projected, at first in a northeasterly direction, parallel with the main tunnel and distant therefrom about twenty-five feet. As the work in this room progressed its direction was changed gradually toward the west or northwest. It was claimed by .plaintiff below that the superintendent was not aware of the actual direction it was being pushed, and that he supposed and led the workmen under him to believe that it was being extended parallel with the main tunnel, and that it would break into the “Marcy” room, which was then being opened at a point north of it. As a matter of fact it had been extended so far in a northwesterly direction that it - approached very near to the main tunnel. The shot which' caused the accident was placed in the “Blossom” room where the pillar was only four and one-half feet from the east side of the tunnel and in a hole drilled probably three or four feet nearer the wall of the tunnel, at a point directly opposite the entrance into the “company” room. The “Marcy” room, which had been started on the east side.of the main tunnel north of the “Blossom” room, was at this time fully thirty-five or forty feet distant, and had been opened only about twenty feet east of the main tunnel. On the day of the accident Lawrence Marcy was at work there. When the shot was ready to be fired Shinn, the superintendent, ordered him out of the “Marcy” room into the “company” room, and also ordered all the other píen at work in that part of the mine into the “company” room for safety, and went there himself. Blossom, who gave the signal and then fired the shot, .had been ordered to go to the same place, and ran out, intending to go there, but stumbled and fell in the main tunnel and escaped injury. Reedy, the deceased, and another miner, who were laying track in the “Marcy” room, in obedience to the orders of Shinn had gone to the “company” room as soon as Blossom signaled, and Reedy was standing about eighteen feet inside the entrance, near Marcy. The “company” room opened off on the west side of the main tunnel and was probably thirty-five feet across at its widest place, and pear-shaped, the narrow portion being the entrance. The explosion broke through the narrow space into the main tunnel and threw a mass of rock and stones directly into the “company” room, some of which, striking Reedy, caused the injuries that resulted in his death. Upon the trial the company claimed and sought to prove by the superintendent that he knew the direction the “Blossom” room was being pushed; that it was the intention originally to have it meet the “Marcy” room, but that the plans had been changed; and that for the purpose of giving proper circulation to the mine it was concluded to have it break into the main tunnel where the shot actually opened it. It wás claimed that the men knew of this change in the plans; that Reedy, being an expert miner, who until the day of the accident had worked in the “Blossom” room, knew the direction it was going; that he was in the “Blossom” room a few moments before the shot was fired and after it had been placed, and knew or should have known fully the probable effect it would have; and that he was guilty of contributory negligence in failing to take a position of safety near the sides of the “company” room, where it seems some of the miners stood and were not injured. There was some dispute as to the shape of the “company” room, plaintiff in error claiming that the main body of it was circular, leaving shoulders where it widened out from the entrance, and that behind these shoulders the deceased could have stood in safety. The contention on the’ other hand was that the entrance to this room was so wide in comparison to the width of the room itself as to leave no abrupt shoulders; that the shot which caused the accident was placed at a point directly across the main tunnel from the entrance to the “company” room; that neither the miners nor the superintendent supposed that the shot would break through where it did; and ‘that the deceased was therefore guilty of no contributory negligence. When the shot was fired the shower of rocks fell all over the “company” room, and some of the others who stood near Reedy were knocked down by the explosion. Two maps were offered in evidence; one, drawn by the officers of the plaster company several weeks after the accident, which sustained to some extent the contentions of the company as to the shape of this room and of the “Blossom” room, and another, made immediately after the accident by the miners, who identified it as correct, which sustained the claims of plaintiff below as to the shape and direction of the rooms. Plaintiff below charged defendant company with negligence in permitting the “Blossom” room to be curved to the northwest so as to leave the pillar or rib between it and the main tunnel' so thin that a shot would break through into the main tunnel where it did, and in ordering the miners into the “company” room directly in front of the place where the shot broke through.