Davis v. Trade Dollar Consol. Min. Co.

Citations

• 117 F. 122
• 54 C.C.A. 636
• 1902 U.S. App. LEXIS 4415

Syllabus

<p>1. Master and Servant—Injury of Servant—Fellow Servants.</p> <p>The foreman of one shift of men alternating with others in working in a mine is a fellow servant with the members of the other shifts, and the master is not liable for an injury to one of the men caused by the negligence of the foreman of the preceding shift.</p> <p>2. Same—Negligence of Fellow Servant.</p> <p>Three shifts of men were engaged in driving a tunnel in a mine, working alternately. One shift would drill a number of holes in the face of the tunnel, charge them with blásting powder, and explode them, and then retire, to be succeeded by another shift. It was the custom for the outgoing shift to note the number of explosions, and inform the sue-ceeding shift how many, if any, of the blasts remained unexploded. The foreman of one retiring shift stated to the incoming shift that two blasts had not been heard to explode,—one at the top, and the other at the bottom, of the tunnel. Their location, however, could not be certainly known without an examination, and this was made by plaintiff, who was one of the second shift. He located one at the top, and supposed the other to be at the bottom, where it was covered by the fallen rock. It was in fact in the breast of the tunnel, and on further drilling it was exploded, and plaintiff was injured. Held, that the injury was not chargeable to the negligence of the foreman of the outgoing shift in failing to correctly locate the unexploded blasts, which plaintiff, as an experienced miner, must have known could not be done with certainty merely from the sound of the explosions.</p> <p>8. Same—Unsafe Place to Work—Assumed Risks.</p> <p>A master is not required to furnish the servant with a safe place to work as against a danger which is temporary, and arises from the hazard and the progress of the work itself, and is known to the servant, who in such ease assumes the risk therefrom.</p>