NORTHAM et al. v. BOSTON & MONTANA CONSOL. COPPER & SILVER MINING CO., 190 F. 722

GILBERT, Circuit Judge (after stating the facts as above). The plaintiffs in error contend that the facts shown on the trial were sufficient to carry to the jury the question of the negligence of the defendant in error on the ground of its failure to inspect the mine, and in permitting a large rock projecting from the wall to remain for several days, where it was in danger of falling as soon as it was touched. We are not convinced that there was evidence sufficient to show negligence in that particular.

The rock, imbedded as it was in the side of the wall, projecting, as witnesses variously testified, from three inches to a foot, would not necessarily import danger to the employes working as they were in a stope which was furnished with a series of floors, each constructed with a view to arrest upon its surface any rock that was likely to fall from the sides of the stope. There was little or no danger to the employes from rocks falling from the stope, unless the rocks went through the lagging.

In view of the protection against injury which the lagging was intended to furnish, we doubt whether the duty of inspection should have gone further than an inspection of the lagging to see that it was sufficient for the purpose intended. But a workman, engaged in working in a stope such as that in which the deceased was at the time when he was killed, is entitled to the protection of a reasonably safe roof over his head. Bunker Hill & Sullivan Mining Co. v. Jones, 130 Fed. 813, 65 C. C. A. 363. Of the obligation of the master to provide a safe place to work, it was said in Patton v.

Texas Pacific Railway Co., 179 U. S. 658, 21 Sup. Ct. 275, 45 F. Ed. 361: “He is bound to take reasonable care and make reasonable effort, and tbe greater tbe risk wbicb attends tbe work to be done, and tbe machinery to be used, tbe more imperative is tbe obligation resting upon bim.

Reasonable care becomes, then, a demand of higher supremacy, and yet in all cases it is a question of tbe reasonableness of the care; reasonableness depending upon the danger attending tbe place or tbe machinery.’.’ Mere proof of an accident resulting in injury to a servant while in the service of his master, through a defect in machinery, structure, or appliance, is not of itself sufficient to establish the master’s negligence; 'and where the evidence shows that the" accident might have occurred from one of several causes, for some of which the master is responsible, and for others of which he is not, the jury is not permitted to say that it resulted from a cause for which the master was liable, unless there is in the evidence satisfactory foundation for that conclusion.

Patton v. Texas & Pacific Ry. Co., 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361. And mere proof that a rock fell through one of the floors of the stope of the defendant in error’s mine and killed an employé might not be sufficient to establish negligence on the part of the employer. In such a case, ordinarily, the rule of res ipsa loquitur does not apply. Such an accident might result from an uirknown and undiscernible defect in the lagging.

But when it is shown, not that there was a defect, but that the strength of the lagging was insufficient to sustain the rocks which fell, and which had fallen at different times in the progress of the work, a prima facie presumption of negligence arises, and it is not overcome by the oral testimony of witnesses who testified that it was reasonably safe. No amount of testimony of that nature can avail to prove a working place to be safe which is obviously unsafe.

In the testimony, therefore, that rocks had fallen upon and gone through the lagging at different times, and that the deceased was killed in the manner proven on the trial, there was evidence tending to show negligence on the part of the defendant in error, negligence in failing to furnish and use flooring of sufficient strength. Westland v. Gold Coin Mines Co., 101 Fed. 59, 41 C. C. A. 193; The Joseph B. Thomas, 86 Fed. 658, 30 C. C. A. 333, 46 C. C. A. 58; The Yoxford (D. C.) 33 Fed. 521; McFarland v. The J. C. Tuthill (D. C.) 37 Fed. 714. In Westland v.

Gold Coin Mines Co. a workman was killed by the breaking and falling of a stull in the defendant’s mine. The stull was erected by placing lagging on timbers running across a fissure in which it was built, and it was intended to be of sufficient strength to sustain a weight of 20 feet of earth and rock. It broke and fell when there were but 9 feet of rock upon it. Said the court: “The fact that the stall fell demonstrates that it was insufficient to support the load with which it was burdened at the time it fell.

The caso in hand, then, is not of that kind of which it may be said that the occurrence of the accident affords no evidence of negligence.” It was not a conclusive answer to the negligence in furnishing insufficient lagging, as charged in the complaint, to show, that the lagging was such as was usually used in that mining camp, or to produce the testimony of .witnesses that it was reasonably safe. The question whether it was reasonably safe was for the jury to answer.

The evidence of the custom in other mines was admissible for the value which it might have in informing the jury, but it could not be held conclusive of the question of the master’s negligence. “Customary negligence, either on the part of himself or others, is no defense to the master.” 26 Cvc. 1108. In Indermaur v. Dames, L. R. 1 C. P. 274, Willes, J., said: “No usage could establish that what was in fact unnecessarily dangerous was in law reasonably safe as against persons to whom there was a duty to be careful." In Texas & Pacific Ry. Co. v. Behymer, 189 U. S. 468, 23 Sup, Ct. 622, 47 L.

Ed. 905, the court said: ‘’What usually is done may be evidence of what ought to be done; but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.” In Sawyer v. J. M. Arnold Shoe Co., 90 Me. 369, 38 Atl. 333, the court said: “Ordinary care is such care as persons of ordinary prudence would have exercised under like circumstances.

It does not depend upon custom. 3t would be no excuse for a man for a want of ordinary care that carelessness was universal about tbe matter involved, or at the place of the accident, or in the business generally” — citiug Mayhew v. Mining Co., 76 Me. 100. In Siversen v. Jenks, 102 App. Div. 382, 92 N. Y.

Supp. 382, the court held that the fact, if established to the jury’s satisfaction by the evidence, that the scaffolding furnished plaintiff for his use as an employe by the defendant was, through negligence in its construction arising from the omission of the use of spreaders, or from any other cause, unsafe, unstable, and improper, and not so constructed, placed, or operated as to give a proper protection to the life and limb of the plaintiff, warranted a verdict in his favor, without reference to the question of an established custom among dock builders as to their use or omission.

Of similar import are Lake Erie & W. R. Co. v. Mugg, 132 Ind. 168, 31 N. E. 564; Austin v. Chicago, R. I. & P. Ry. Co., 93 Iowa, 236, 61 N. W. 849; Reichla v. Gruensfelder, 52 Mo. App. 43; Colorado Midland Ry. Co. v. Brady, 45 Colo. 203, 101 Pac. 62; Lyon v. Bedgood, 54 Tex. Civ. App. 19, 117 S. W. 897; McCormick Harvesting Mach. Co. v. Burandt, 136 Ill. 170, 26 N. E. 588; Chicago, M. & St. P. Ry. Co. v. Carpenter, 56 Fed. 451, 5 C. C. A. 551. The judgment is reversed, and the cause is remanded for a new trial.