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Commentaries on the law of negligence in all relations online

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injured a miner. 80 Upon the question of the contributory negligence
of the injured miner the general principle 81 applies that where his
duties in the mine do not themselves concern the propping of a roof,
he has the right to presume, unless admonished to the contrary, that
his employer has done his duty — especially where that duty is pre-

™Himrod Coal Co. v. Clark, 197 mine, which caused the death of a

111. 514; 8. c. 64 N. E. Rep. 282; miner, was the result of defendant

aff'g s. c. 99 111. App. 332 (of course mining company's failing to prop

there was countervailing evidence, the same, an Instruction that it was

but the question was whether there defendant's duty to provide a rea-

was evidence to take the case to the sonably safe place for deceased to

jury). work in, and that if it failed to dp

"Kellyville Coal Co. v. Yehnka, so, and for this reason deceased,

94 111. App. 74. while performing his duty and in

"Koltinsky v. Wood, 112 Ky. 372; the exercise of due care, was in-

s. c. 23 Ky. L. Rep. 1665; 65 S. W. jured by the falling of the roof, be-

Rep. 848. cause of the absence of sufficient

"Taylor v. Star Coal Co., 110 props, plaintiff was entitled to re-
Iowa 40; s. c. 81 N. W. Rep. 249. cover, was not objectionable: Him-

80 Consolidated Coal Co. v. Lun- rod Coal Co. v. Clark, 197 111. 514;

dak, 196 111. 594; s. c. 63 N. E. Rep. s. c. 64 N. E. Rep. 282; aff'g s. c. 99

1079; aff'g s. c. 97 111. App. 109. 111. App. 332.

Where there was evidence that the 81 Vol. I, § 190.
falling of a portion of the roof of a


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4 Thomp. Neg.] duties and liabilities of the master.

scribed by a statute, — and has the right to act upon the assumption that
the roof is properly propped and that the place is reasonably safe. 82
But contrary to this, another court has held that the owner of a coal
mine is not liable for an injury to an employ^ caused by a fall of top
coal from the roof of the mine at the place where he was at work,
which the mine-boss had failed to have taken do^n, where the injured
employ6 was an experienced miner, and had thoroughly tested the roof
shortly before the fall and believed it to be perfectly safe, although
the statute makes it the duty of the mining boss to examine every
working-place in the mine as often as every alternate day, and see
that the same is properly secured by props or timber, and that safety is
in all respects assured. 88 #

§ 4193. Liability for Injuries from Falling Sock, Coal, Ore, etc.,
Other than Falling Roofs. — Mine-owners are bound to adopt all rea-
sonable means and precautions to lessen the dangers to their em-
ployes from the falling of rocks down the slope of the excavation, al-
though such danger cannot be entirely averted. 84 Therefore, the pro-
prietor of a marble quarry will become liable for the failure of the
foreman in charge of it, to test projecting rocks which are liable to
slip and fall, and to have them removed when they become apparently
dangerous. 85 So, it is the duty of an employer, who orders a laborer
to work near or alongside a pile of ore packed in such a mass that the
use of explosives has been required to lyosen it, to observe carefully
the condition of the material as to looseness or compactness and all
other features of its structure, so as to be able to determine what shall
be done to prevent the fall of ore upon such employ6. 86

"As where a miner employed to " McMillan . Marble Co. v. Black,

operate a machine and having noth- 89 Tenn. 118; s. c. 14 S. W. Rep.

ing to do with the propping or Urn- 479.

bering of the mine, which was done M Illinois Steel Co. v. Schyman-

by workmen employed for that pur- owski, 162 111. 447; s. c. 44 N. B.

pose and provided with implements Rep. 876; aff'g s. c. 59 111. App. 32.

to detect defects in the roof, was A miner employed in the shaft of a

killed by the fall of a roof while he talc mine .was injured by a mass of

was in the entry preparing to re- quartz and talc becoming detached

move his tools to another part of and falling from the Bide of the

the mine, he having had no notice shaft. The shaft was made by tak-

of any defect in the roof, or that it ing out a vein of talc, which is a

was apt to fall: Himrod Coal Co. slippery mineral, easily dislodged,

v. Clark, 197 111. 514; s. c. 64 N. E. and is usually separated from the

Rep. 282; aff'g s. c. 90 111. App. 332. rock by a mixture of talc and

•* Island Coal Co. v. Greenwood, quartz, which safety requires to be

151 Ind. 476; s. c. 4 Am. Neg. Rep. taken out in the construction Of a

146; 50 N. E. Rep. 36 (plaintiff and shaft. It was held to be sufficient

assistant were both experienced evidence of the employer's negli-

miners and the roof had been prop- gence to go to the jury; since it was

erly inspected). the employer's duty, in excavating

"Deweese v. Meramec Iron Min. the shaft, to be duly careful to

Co., 54 Mo. App. 476. leave the walls in a reasonably safe


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§4194. Duty to Keep a Supply of Timbers for Propping and'
Shoring Up. — The duty of keeping the roofs of mines propped up
and the sides shored up where necessary, implies an obligation to keep
on hand a reasonable supply of timber suitable for that purpose, and,
moreover, to keep it where it may be readily available in case of neces-
sity. This duty is in some states enforced by the statute law. Thus
the Illinois Miners Act 87 provides that mine-owners must have on
hand suitable timber for propping the mines so that the miners may
be able at all times to secure the place where they are working for
their own safety. It has been held, construing this statute, that it is
the implied duty of the miners' to inspect the roof from day to day,
and, where there is no timberman, to set the props themselves, and, if
there is a timberman, to report dangerous places to him; 88 and that
the miner himself is the one to determine the length and dimensions
of the props and cap-pieces necessary to properly secure his safety;

condition: Severance v. New Eng-
land Talc Co., 72 Vt. 181; s. c. .47
Atl. Rep. 833. For another case
where a miner was killed by the
fall of a pillar of talc, and where
the evidence was held sufficient to
support a judgment against the
mine-owner, — see • Tetherton v.
United States Talc Co., 41 App. Div.
(N. Y.) 613; s. c. 58 N. Y. St. Rep.
55; s. c. aff'd, 165 N. Y. 665; 59 N.
E. Rep. 1131. the fact that props
furnished a coal-miner at his re-
quest were not of the precise length
required for the place where they
were designed to be used, did not
create a liability for an injury to
the miner from falling coal, where
the miner failed to specify the
length desired: Sugar Creek Min.
Co. v. Peterson, 177 111. 324; a c. 52
N. B. Rep. 475; rev'g- s. c. 75 111.
App. 631. A mine-owner was not
guilty of negligence toward an em-
ploys engaged in timbering an en-
try, in respect to a mass which an-
other employ^ had for an hour be-
fore its fall vigorously endeavored
to bring down, and which the fore-
man also tried to bring down with
his pick; so that where the fore-
man directed the timber-man to cut
a notch for a stull at a place lower
than and a little to one side of the
mass that fell, and to do so he took
a position directly under the mass,
and it fell and killed him, and in-
jured the other miner, there could
be no recovery: Finalyson v. Utica
Min. &c. Co., 67 I?ed. Rep. 507; s. c.

VOL. 4 THOMP. NEC. — 25

14 C. C. A. 492. Where two tunnels
were being mined by the same
company — one above the other — in
the same gulch, each tunnel-gang
being under the supervision of an
independent superintendent, and a
rock negligently ordered to be rolled
down the gulch struck and Injured
a man working at the tunnel below,
who had no notice that such rock
would be thrown down, and the
rock could have been thrown into
another gulch, in which no one was
working, the evidence was sufficient
to warrant a verdict for the em-
ploye in a suit to recover for such
injury. The superintendents were
vice-principals; nor were the mem-
bers of the two gangs fellow serv-
ants: Uren v. Golden Tunnel Min.
Co., 24 Wash. 261; a c. 64 Pac. Rep.

"Rev. St 111., ch. 93, § 16; Hurd
Rev. St 111. 1887, p. 1167.

n Consolidated Coal Co. v. Schel-
ler, 42 111. App. 619. This statute
authorizes a recovery for an injury
to a miner through a willful failure
to comply with its provisions, al-
though the entry which he is open-
ing has a high and dangerous roof,
and he is being paid, by reason
thereof, a price exceeding the scale
fixed by the union to which he be-
longs, since he is a "workman"
within the meaning of the statute,
without regard to such facts: Mt.
Olive &c. Coal Co. v. Herbeck, 190
111. 39; s. c. 60 N. E. Rep. 105; aff'g
s. c. 92 111. App. 441.


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4 Thomp. Neg.] duties and liabilities of the master.

and if he orders props and cap-pieces of a certain dimension and
length, it is no compliance with the statute for the owner to furnish
him props which must be spliced or sawed before they can be used. 89
One court held that the failure of a coal-mining company to furnish
props and to prop the clod, dirt, and slate was not a violation of the
statute, which was satisfied if a sufficient supply of timber was kept
for the purpose to be sent down when required ; and that such failure,
without more being shown, did not create a common-law liability. 90
But the Supreme Court of the same State, with seemingly more jus-
tice and humanity, held that the provisions of the statute do not re-
lieve the owners of all responsibility for the condition of the roofs
in their mines, nor supersede the requirement of the common law
that a master shall furnish his servant a reasonably safe place to work,
so as to relieve him from further responsibility after complying with
the statute, as applied to a driver of cars over tracks ip. a mine-entry,
who has nothing to do with the propping of the roofs, and especially
where the mine-owner had been notified of the unsafe condition of
the roof of the entry, and had assumed to repair it. 91 As observed
when treating another provision of the same statute, 92 it uses the word
"willfully," and predicates a liability upon the willful failure of the
mine-owner to fail to comply with the precautions required by the
statute. In the enactment of such a statute the mine-owners or their
attorneys must have got in their nefarious work; for the common
law, properly defined and administered, would make the mine-owner
liable for damages visited upon an employ6 by his negligently omitting
the mere precautions ; nevertheless the courts are obliged to administer
the statute as the Legislature has made it, although to do so may and
does in many cases condone the negligent manslaughter of a deserv-
ing class of citizens. In order to sustain a recovery under the statute
where a miner has been killed through a neglect to comply with its
provisions, it must appear that the jnine-owner willfully failed and
neglected to deliver to the deceased miner props and caps of sufficient
length and dimensions with which to prop the mine, and that because
of such willful failure and neglect the miner met his death. 98 In an-
other State where there is a similar statute, giving a right of action

• Western Anthracite Coal &c. Co. w Consolidated Coal Co. v. Bo-

v. Beaver, 192 111. 333; s. c. 61 N. E. kamp, 181 111. 9; a. c. 54 N. E. Rep.

Rep. 335; aff'g s. c. 95 111. App. 95. 567; aff'g s. c. 75 111. App. 605.

m Consolidated Coal Co. v. Young, "Ante, §§ 4184, 4185.
24 111. App. 255 (facts and circum- "Western Anthracite Coal Ac. Co.
stances may exist in a given case v. Beaver, 95 111. App. 95; s. c. aff'd,
from which such duty will be im- 192 111. 333; 61 N. E. Rep. 335 (prop-
posed at common law, but no such er to refuse to direct a verdict for
facts were averred in plaintiff's the defendant),


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for an injury causeH by the "willful failure" of the owner, etc., of a
coal mine to keep a supply of timber for props when required, it is
an essential condition to recovery that the defendant had notice that
the timber and props were required, and, with such notice, neglected
and refused to supply them; and an instruction not requiring the jury
to find to that effect is faulty. 94 That there- may have been props
somewhere in the mine is not a substantial compliance with a statute
requiring that props shall be delivered at the "usual place/' particu-
larly when the miner knows nothing about them. 95 The rule with re-
spect to the willful failure to comply with other statutory require-
ments 96 applies in this relation ; so that if a miner is injured through
the willful failure of the mine-owner to furnish timbers to prop up
the roof of the mine, contributory negligence on the part of the miner
who is killed or injured by the falling of the roof will be no defense
to an action for the damages, provided the willful neglect is the proxi-
mate cause of the injury. 97 But it has been held that a liability of a
mine-owner for injuries to an employ^ from the fall of slate cannot
be based upon his negligent failure to provide the latter with props,
where the fall was caused by the employ^ tapping the slate, as it was
his duty to do after a blast before propping ; since the miner had will-
fully encountered a danger known to him. 98 Under a statute giving
a right of action against the "owner, agent, or operator" of a mine,
for injuries caused by a willful failure to furnish props, the owner is
liable, even though the mine is operated by another under a contract
with the owner, where the contract provides that the latter shall fur-
nish timber for props. The duty enjoined was intended for the pro-
tection of persons employed in the mines, no matter by whom em-
ployed. The relation of master and servant is not, therefore, neces-
sarily involved, nor the principles of law governing that lelation. The
actual owner has a right to transfer the occupancy and proprietor-
ship of the mine by lease or other contract, and thus relieve himself
from the duties imposed. But he cannot be permitted to relieve him-
self of the statutory duty and at the same time retain any joint occu-
pancy or proprietorship of the mine. To relieve himself he must part

M Leslie v. Rich Hill Coal Min. "Donk Bros. Coal &c Co. v.

Co., 110 Mo. 31; s. c. 19 S. W. Rep. Stroff, 100 111. App. 576.

308. This decision is deserving of "Vol. I, § 206; ante, § 4185.

little respect, because it ignores the " Donk Bros. Coal Ac. Co. v.

obvious consideration that the Stroff, 100 111. App. 576. See also,

mine-owner is under a continuing Sunnyside Coal Co. v. Center, 100

duty of Inspection to the end of see- 111. App. 546.

ing and knowing when the timbers M Massie v. Peel Splint Coal Co.,

and props are required. 41 W. Va. 620; s. c. 24 S. B. Rep.



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4 Thomp. N"eg.] duties and liabilities of the master.

with all immediate proprietorship and occupancy of the mine and con-
trol of its operation.**

§ 4195. Failing to Provide Place of Refuge on Hauling-Roads
and Gravity Eoads. — A willful failure on the part of an owner of a
coal mine to comply with so much of the Illinois Miners Act as re-
quires him to provide places of refuge on all gravity or inclined en-
tries in his mine, renders him liable for injuries received by reason of
such failure. 100 The statute provides 101 that on all single-track haul-
ing roads wherever hauling is done by machinery, and on all gravity
and inclined planes, in mines, on which persons employed in the
mine travel on foot to and from their work, places of refuge must be
cut in the side wall. Construing the statute, it is held that a mining
company cannot escape liability for an injury occasioned by the fail-
ure to provide such places of refuge on an inclined track in 'its mine,
on the ground that there was a double track, and that the statute did
not require such places except oh a single-track road where machinery
was used, — the court reading the statute as requiring such places "on
all inclined planes where coal-cars are hauled, whether by machinery
or mules, whether by single or double track." 102

§ 4196. Failure to Provide Barriers upon Ore-Tramways to Pre-
vent Can from Running into the Shaft of the Mine. — The construc-
tion, in an upper level of a mine, of an ore-tramway on such a grade
that cars started thereon, or starting by gravity, will run into the shaft
by their own momentum, without providing sufficient barriers to pre-
vent their falling down the shaft, is negligence. 108

§4197. Injuries in 'Timbering" Mines. — The fact that mining
operations in a mine have proceeded beyond a point in the stope 10 * to
which it has been timbered, does not change the portion so timbered
into a place to work, so as to bring it within the rule requiring the
master tb furnish the servant a reasonably safe place in which to work,
where the timbering amounts only to a temporary lagging, and is an
incident of the work ; but he has only the duty of furnishing men and
suitable materials for the use of his employ6s working in such tim-

*I*slie v. Rich Hill Coal Min. 1M Brookside Coal Min. Co. v.

Co., 110 Mo. 31; s. c. 19 S. W. Rep. Dolph, 101 111. App. 169.

308. '"Union Gold Min. C6. v. Craw-

100 Brookside Coal Min. Co. v. ford, 29 Colo. 511; s. c. 69 Pac. Rep.
Dolph, 101 111. App. 169; Brookside 600.

Coal Min. Co. v. Hajnal, 101 111. ™ Stope, an excavation made in a
App. 175. mine in the process of removing

101 Rev. St. 111. 1901, p. 1216, § 21. ore.


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bered portion. 105 A mine-owner is not guilty of negligence toward an
employ6 engaged in timbering an entry, in respect to a mass of earth
which another employd has been an hour before its fall vigorously en-
deavoring to bring down, and which the foreman also tried to bring
down with his pick. 106

§4198. Objects Falling Down Shaft of Mine. — The owner of a
coal mine who negligently left the mouth of an air-shaft to the mine
unprotected, while it was being constructed, was held liable for the
death of an employ^ at work at the bottom of the shaft, caused by a
barrel falling down the shaft, although a sudden and violent gust of
wind contributed to the accident. 107

• § 4199. Duty of Mine-Owners as to Ladders, Scaffolding, etc., in
•their Mines. — The mine-owner being under a primary and absolute
duty with respect to the safety of his mine, he cannot, if he employs
certain methods <?f bracing and supporting the staging and scaffoldings,
relieve himself from liability for injuries to a miner by the falling of
a scaffold, on the ground that the method employed in bracing and
supporting it was dangerous, and that the miner was bound to know
that the methods were not the best, where he had nothing to do with
the construction of the scaffolds and staging in the mine. 108 " It has
been pronounced gross, negligence in a servant who, ordered to remove
the waste from a level of a mine, removed the waste supporting one
upright of a ladder used by workmen in passing from the upper to
the lower level of the mine, where it was dark, and the changed con-
dition was not observable to one attempting to pass from the upper
level. 100 Where a miner descended a ladder, and, on stepping off the

*»PetaJa v. Aurora Iron Min. Co., securely timbered or protected, —

106 Mich. 463; s. c. 2 Det. Leg. N. with the conclusion that the statute

534; 3 Det Leg. N. 43, 53; 32 L. R. was not intended to impose unrea-

A. 435, 438; 64 N. W. Rep. 335; 66 sonable burdens upon mine-owners:

N. W. Rep. 951. McDonald v. Canadian Pac. Ex-

"•Finalyson v. Utica Min. Ac. ploration Co., 7 Brit Col. L. Rep.

Co., 67 Fed. Rep. 507; s. c. 14 C. C. 39.

A. 492. The deceased came along 1OT Springside Coal Min. Co. v.

after above-noted efforts to bring Grogan, 67 111. App. 487; s. c. aff'd,

down the mass, and the foreman 169 111. 50.

directed him to cut the notch for loe Eddy v. Aurora Iron Min. Co.,

the next prop at a place lower than 87 Mich. 548; s. c. 46 N. W. Rep. 17.

and a little to one side of the mass, 1M Dryburg v. Mercur Gold Min.

to do which the deceased sat direct- Ac. Co.. 18 Utah 410; s. c. 5 Am.

ly under the mass, and after drill- Neg. Rep. 253; 55 Pac. Rep. 367

ing for half an hour it fell and (whether two servants working at

killed him. Construction a distance from each other were

of § 25, rule 20, of the Brit. Col. fellow servants was a question of
statute known as the Inspection of fact for a Jury, under proper in-
Metalliferous Mines Act, which re- st ructions from the court as to who
quires each shaft, etc., to be kept are fellow servants}.


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4 Thomp. Neg.] duties and liabilities of the master.

last rung, fell into a hole in the platform, made and left open by the
company's foreman without such miner's knowledge, the question of
a fellow servant's negligence was not involved, but whatever was
done by the foreman in the mine in leaving the hole in the platform
was chargeable to the company. 110

§ 4200. Caving In of the Shaft.— -The owner of a mine is not lia-
ble for the death of an experienced miner in its employ caused by the
caving of a shaft while sinking it, where such shaft was at the time
only twelve feet deep, and the owner, on being informed that the
shaft needed timbering, immediately began to place the timber, in
which work the miner was engaged when the injury occurred. 111

§ 4201. Duty of Mine-Owner to Give Warnings of Danger. — T&e

general duty which rests upon every employer, 112 is particularly appli-
cable in the case of mines having extensive ramifications under ground
and many workmen engaged in various departments and kinds of
service. Accordingly, it has been held that a mining company is
liable for injury to a workman by the fall of a stone from a slope
under which he is set to work, where he does not know that pebbles
and stones in unusual numbers have been falling there during the
day, but this fact is known to the superintendent of the mine, who
orders him to work there, without first warning him, or having the
stones raked off, or taking any other precautions to prevent the acci-
dent. 118 But the operator of a mine, who, in accordance with a cus-
tom in his business, places a danger-signal in the room of a mine
where there is standing gas, is not required, in addition, to place a
man on duty to watch and warn against entrance into such room with
a naked light. 114

§4202. Negligence with Respect to Stulls and Platforms. — A

mining company, which erects a stull or platform across a narrow and

"•Downey v. Gemini Min. Co., 24 ter to keep them reasonably safe, —

Utah 431; s. c. 68 Pac. Rep. 414. In was not correct, and was properly

such a case an instruction that, refused: Downey v. Gemini Mih.

where a mining company, in the Co., 24 Utah 431; s. c. 68 Pac. Rep.

prosecution of its work, is putting 414.

in timbers and floors to catch ore m Stiles v. Richie, 8 Colo. App.

as it is broken down and distribute 393; s. c. 46 Pac. Rep. 694.

it into various chutes, and the m Ante, § 4055, et seq.

floors are being changed from time "•Deweese v. Meramec Iron Min.

to time to keep up with the work, Co., 54 Mo. App. 476; 8. c. aff'd, 128

such floors and timbers and pass- Mo. 423; 31 S. W. Rep. 110.

ageways are to be deemed the work "* Cerrillos Coal R. Co. v. Deser-

itself, and not the place of work, or ant, 9 N. M. 49; s. c. 49 Pac. Rep.

the means of egress or ingress, 807.
within the rule requiring tht mas-


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dark fissure in its mine, seventy feet from the bottom, on which its
employes are required to work, is bound to the exercise of reasonable
care to see that the timbers are of adequate strength and number, and
securely fastened, so as to render it a safe place on which to work. 115

§ 4203. Electric Wires Not Properly Insulated. — There are duties
which a mine-owner owes to his employes, as licensees, though not
strictly as employes, with respect to keeping those portions of the
mine safe where they are not required to work, but through which
they are accustomed to pass in congregating or visiting during the

Online LibrarySeymour Dwight ThompsonCommentaries on the law of negligence in all relations → online text (page 57 of 165)