MOON-ANCHOR CONSOL. GOLD MINES, Limited, v. HOPKINS, 111 F. 298

ADAMS, District Judge, after stating the case as above, delivered the opinion of the court. The only question to be answered on this writ of error is whether there was any substantial evidence to support the verdict as rendered. The uncontradicted facts of the case are substantially as follows: The deceased, although a minor, had passed his twentieth year, and was in full possession of well-developed faculties of body and mind.

He had been át work as a trammer at the sixth level of defendant’s mine for a period of four weeks or more, during which time defendant had been engaged in excavating the pumping station in question. He had witnessed and participated in the work from the beginning. During this time the narrow drift which run out from the shaft had been widened and extended so as to constitute a room of about 30 feet by 50 feet in dimensions.

Prior to March 18, 1899, the work of excavating the pump station had progressed so far that it had then nearly reached the lateral dimensions intended for it, bu't had not been excavated to the height required. Occasionally during the progress of this excavation prior to March 18th rock had fallen from the roof, but there had been no substantial caving. During the progress of the work a supporting pillar of earth and rock, 8 or 10 feet in dimensions, had been left to support the roof of the station. On March 18th this pillar was cut or shot out.

This occasioned a serious cave-in or dropping of a large amount of rock from the roof of the station to the floor, and necessarily stopped such further excavation as was necessary to complete the room as originally intended. Immediately thereafter all excavating work, except such as was necessary to permit timbers to be put in place, was stopped; and from that day until the day of the accident, which occurred 10 or 11 days thereafter, all work was directed to removing the fallen rock and débris, and timbering the roof of 'the station to prevent „further falling of the same.

The defendant began the work of timbering at that portion of the station nearest the shaft, and progressed outward towards the further end of the station. This was done to permit the workmen, after the first timbers had been put in place, to do the further work of removing the fallen and falling rock under the protection of supporting timbers. While this work was progressing, rock frequently fell from various parts of the roof of the station which remained untimbered. The work of removing the rock and débris and securing the roof with timbers continued uninterruptedly from March 18th to March 28th.

During all this time plaintiff’s son worked with the other men in the common purpose of cleaning out the chamber and putting it into a safe condition. The physical facts, as well as the undisputed testimony of the witnesses, in our opinion, clearly show that he was fully aware of the changed situation resulting from the cave-in of March 18th and of the character of the work and the dangers incident to it which ensued thereafter.

The defendant on or before March 28th had provided hooks with long iron handles to be used by the workmen in pulling rock which had fallen outside of the screening of the timbers back underneath the same. On the morning of March 29th the midnight shift, as it was called, including the deceased, came on duty, and went down to the station to work.

They were shown the hooks which had been provided, and told not to go beyond that portion of the station over which the timbers had been placed; the foreman designating the same as the “dead line.” The deceased went to a point in the station under the timbers, safely inside the dead line.

He had a rope in his hand, and had just made a remark to the effect that he would lasso some of the loose rock lying outside, when a large rock fell from the roof of the station just outside the timbering, to the ground below, struck on a pile of rock formed by a cave-in of the night before, was deflected under the timbers , and crushed the deceased, causing his death. A critical reading of all the evidence discloses no substantial fault or want of due care on the part of the defendant in conducting the work after the cave-in of March 18th.

The trial court ruled out all evidence tending to show negligence in the manner of excavating the chamber prior to March 18th; but notwithstanding such ruling the facts and' circumstances suggested by questions propounded to the witnesses, and appearing in the description of the locus in quo, tended to show that the defendant had not employed ordinary care in the excavation of the station prior to March 18th.

Excavating so large a cavity without supporting the roof otherwise than by leaving one pillar of earth and rock, and subsequently cutting out that pillar without making adequate provision to prevent a cave-in, were circumstances which might have justified a recovery on the ground of negligence if any one had been injured by the cave-in of March 18th. It is upon evidence of this character, unavoidably permeating the record, although ruled out as incompetent by the court, that plaintiff’s counsel rely in argument and brief to establish the requisite negligence on the part of the defendant.

Without pointing out any substantial acts of negligence—any want of ordinary care—in the conduct of the work in hand after March 18th, counsel for plaintiff say in their brief and argument : “It is true that the sole question of negligence submitted to the jury by the instructions of the court was whether the defendant company, after the cave-in of March 18th, proceeded with reasonable diligence, and as a reasonably careful person would have done under the circumstances, to timber the station for the purpose of malting it as safe as it reasonably could be made under the circumstances.

But the negligence of the defendant in suffering its premises to become dangerous is a factor which is conspicuous in the record in this case. It was an element which the jury doubtless did consider, and which they had a right to consider, notwithstanding the court’s instructions, and we have a right to rely upon this fact in support of the verdict.” For two satisfactory reasons, we cannot agree with counsel. In the first place, the case was not tried on any such theory and defendant had no opportunity to meet any such issue, and no such issue was in point of fact tried.

The learned judge who sat at the trial of the case charged the jury as follows: “There is no testimony in this case showing that the defendant was negligent in making the original excavation in the manner in which it did. * * * [All testimony to that effect having been ruled out by the court.] That question, howTever, could not affect the question of the liability of the defendant, as it is clearly shown by the evidence that the original excavation was not the proximate cause of the injury, and it could not be held to be liable in this case even if in that portion of the work it had been negligent.

On the 18th of March, several days before this accident occurred, several tons of rock fell from the roof of the excavation, thereby demonstrating that the premises were dangerous; and these men were engaged at the time of this accident in endeavoring to make a dangerous place safe. The questi.on, therefore, is whether or not the defendant used ordinary care in providing a reasonably safé working place for the deceased, under the circumstances as disclosed by the evidence.

In other words, if you believe from the evidence that, -after the cave-in on the lStli of March, the defendant, with reasonable diligence, and in a manner such as a reasonably careful person would have pursued under all the circumstances, proceeded to timber the station for the purpose of putting the station in a condition as safe as it reasonably could be put in under all the circumstances, and that the deceased, Pliineas Hopkins, knew, or by the exercise of reasonable care could have learned, the purpose of the work, then you are instructed that he must be held to have assumed the increased hazards incident to putting the station in a reasonably safe condition, of which he knew, or of which one of his age, intelligence, and experience could have learned by the exercise of reasonable diligence.” During the progress of the trial plaintiff’s counsel propounded questions to several witnesses relating to the proper method of excavating the chamber originally.

The following question propounded to witness King is a fair sample: “Q. Now, Mr. King, you may tell the jury whether or not, in your opinion, based upon your observation and experience as a practical timberman, this excavation could have been secured by timbering as the work progressed so as to have avoided the cave-in and the danger to the employés.” To this question, and all others of similar character, defendant’s counsel objected, and the objections were sustained by the court. From the charge and rulings just referred to, the theory of the trial is apparent.

The court refused to permit any inquiry into the method adopted in making the original excavation as a basis of the charge of negligence, and explicitly took from the jury any consideration of the facts attending the same. Plaintiff’s counsel, according to the record, stood silent, taking no exceptions either to the charge or rulings, or otherwise dissenting therefrom.

Instead of saving proper exceptions, submitting to an adverse verdict, and duly prosecuting a writ of error to test the correctness of the court’s rulings, as, in the light of the uncontroverted facts, showing no culpable negligence after March 18th, they should have done, they resorted to the highly-improper and indefensible practice of undertaking to secure a verdict in contravention of the law as laid down by the court.

Not only so, but they boldly avow in their argument and brief before us, as already seen, that, notwithstanding the instructions of th'e court, the jury had a right to disregard them, and to consider facts explicitly taken from them by the court. They practically concede that they must rely upon the suggestions of facts so excluded by the trial court, if the verdict and judgment below are to be sustained.

In other words,, they propose to try in this court a case that was not tried below, and-to try it, not on the record as made, but on a record counsel say would have been made if they had had their own way,—not on evidence duly taken and preserved, but on evidence not taken or preserved; not on exceptions duly taken or assignments of error properly filed, but on mere suggestions of error now for the first time made by them.

The bare statement of the proposition condemns it as revolutionary and dangerous, and, if there were nothing else to justify our judgment, we would not hesitate to say that we cannot, on the record now before lis, give any consideration to the supposed facts showing negligence in the original excavation of the chamber in question. But, as the question relating to the competency of such evidence was fully argued by counsel on both sides, we have deemed it best to express our views concerning it, for the guidance of the trial court at the next trial.

We fully agree with the court in its holding that the method of making the original excavation was not the proximate cause of the injury to plaintiff's sou. By “'proximate cause” we mean that moving or actuating cause which in the natural and orderly sequence of events, and without the intervention of another, new, sufficient, and responsible cause, produces a given result. In our opinion, a new and adequate cause of the death in question arose after the original excavation was made.

It consisted of the risks and hazards attending work in a dangerous place,—not one that had theretofore been dangerous, but one which by reason of the exigency of the occasion had become peculiarly hazardous and risky, and one which imperatively needed Immediate attention to render it safe. The defendant was required, on account of the catastrophe of the 18th, to proceed immediately to make a place which had become dangerous, reasonably safe. Plaintiff’s son voluntarily entered upon this pew work.

New relations arose between him, and his employer, whereby the duties aud obligations of the employer towards him had materially changed. In Finalyson v. Milling Co., 14 C. C. A. 492, 67 Fed. 507, this court had under consideration a similar question. That was a case where a miner was killed by a mass of earth falling upon him.

This court, by Judge Sanborn, there said: •‘It is the general rule that it is the duty of the master to exercise ordinary care to provide a reasonably safe place in which the servant may perform his service. * * * But this rule cannot be justly applied to cases in which the very work the servants are employed to do consists in making a dangerous place safe, or in constantly changing the character of the place for safety as the work progresses. The duty of the master does not extend to keeping such a place safe at every moment of time as the work progresses.

The servant assumes the ordinary risks and "dangers of his employment that are known to him, and those that, might be known to him by the exorcise of ordinary care and foresight.

When he engages in the work of making a place that is known to be dangerous safe, or in a work that in iis progress necessarily changes the character for safety of the place in which it is performed as the work progresses, the hazard of the dangerous place and the increased hazard of the place made dangerous by Llie work are the ordinary and well-known dangers of such place, and by his acceptance of the employment, the servant necessarily assumes them.” This court, also, in an opinion delivered by Judge Thayer in the case of Railway Co. v. Jackson, 12 C. C.

A. 507, 65 Fed. 48, after enunciating the general rule of duty of a master to provide a reasonably safe place for his servants to work, says: “It frequently happens that men are employed to 1ear down buildings or other structures, or to repair them after they have become insecure, or it may be that the work undertaken by the employé is of a kind that is calculated to render the premises or place of performance, for the time being, to some extent insecure.” “T11 eases such as these the servant undoubtedly assumes the increased hazard growing out of the defective or insecure condition of the place where he Is required to exercise his calling, and the doctrine above stated cannot be properly applied.” In the case of Railway Co. v.

Brown, 20 C. C. A. 147, 73 Fed. 970, in the circuit court of appeals for the Seventh circuit, a similar case was under consideration.

It is there said: “There is a duty on the part of a master to provide his servants a safe place in which to work, but manifestly that principle is not applicable to' a case like this, where the place becomes dangerous in the progress of the work, either necessarily or from the manner in which the work is done.” The foregoing decisions demonstrate that the measure of duty and obligation of a master to his servant, when the work voluntarily undertaken by the servant consists in making a dangerous place safe, is materially changed from that prevailing under the general rule.

It may be that negligence in making the original excavation occasioned the new risks and hazards to which plaintiff’s son voluntarily subjected himself, but it cannot, in our opinion, be true that the first-mentioned negligence, remote not only in time, but in connection with the injury, was the actuating cause, when it appears that the deceased of his own free will determined to cope with these risks and hazards, and, for a price satisfactory to him, assumed the liability incident to them., In this, his own voluntary conduct, is found the intervening proximate and responsible cause of his injury.

As already observed, no substantial evidence is found in the record tending to show any want of reasonable precaution or care on the part of defendant in the performance of the difficult task rendered necessary by the casualty of the 18th of March. Indeed, ingenious counsel have suggested no expedients which might have been resorted to by defendant to have more safely done the same; but they practically rest their case, for negligence, upon the attempt to connect the injury with the original excavation.

This having failed, nothing is left to show negligence on the part of defendant, such as to entitle plaintiff to recover; and under the authority of the cases of Finalyson v. Milling Co., Railway Co. v. Jackson, and Railway Co. v. Brown, supra, the deceased, by voluntarily engaging in the work, of making a dangerous place safe, assumed all the risks attending it which were known to him, or which by the exercise of ordinary care and foresight might have been known to him.

An effort is made to justify sending the case to the jury on the issue whether the deceased knew, or by the exercise of ordinary care might have known, the dangers incident to the work in which he was engaged.

The contention that he might have worked in this dangerous place from the 18th of March to the time of his injury on the 29th of March without being informed of the notorious and manifest danger attending the work, or that he might not have heard the plain and clear caution of the foreman, or the frequent- comments of his co-employés about the danger, as well as other equally improbable hypotheses of counsel,* are entitled to little consideration at our hands, when we bear in mind the great and undisputed facts already referred to. He was full grown, and possessed of the usual faculties of adult manhood.

He had had at least four weeks’ experience in and about the very place where he sustained his injury. He had haxl at least one full week’s experience, in connection with other workmen, in the performance of the dangerous work undertaken by him and them. He knew all of the physical facts constituting danger. He saw them with his eyes, and heard of them with his ears. There was nothing mysterious or scientific to prevent full appreciation on his part. Such being the facts, plaintiff will not be heard to say that deceased did not know or appreciate the danger. King v. Morgan (C. C.

A.) 109 Fed. 446, and cases there cited. The trial court was so impressed with the conclusion last stated that it charged the jury as follows: “As I view this testimony, it did not require an experienced miner to determine that this place was exceedingly dangerous.

I think any man of ordinary intelligence, under the facts as disclosed in this case, conld have ascertained that fact; and, indeed, in view of the precautions taken by the defendant company, not only by cautioning the men, but by providing these long iron hooks to be used by them in order that they might remain under ihe timbers, Itliey] could not help hut know the dangerous character of the work in which they were all engaged.” The case is therefore one in which the deceased,, without any protest or objection, entered upon and continued in an employment attended with well-known, constant, and continuing danger and risk to himself.

The authorities hereinbefore cited and referred to abundantly show that he voluntarily assumed all such danger and risk. This conclusion renders it unnecessary to pass upon the question, elaborately argued by counsel, whether under the statutes of Kansas the mother could maintain this action without alleging in the complaint that her minor son was unmarried. The judgment is reversed, and the cause remanded to the circuit court, with directions to grant a new trial.