페이지 이미지
PDF
ePub

inclined to give very much weight to his rec-sonably safe, and that its foreman negligently ollection in other matters pertaining to this action.

ordered the miner to work in the ditch, with-
out first examining the condition of its sides.
[Ed. Note.-For other cases, see Master and
Servant, Cent. Dig. §§ 954, 956-958, 960-969,
971, 972, 977; Dec. Dig. § 278.*1

MASTER AND Servant (§ 289*)—INJURY TO
SERVANT CONTRIBUTORY
QUESTION For Jury.

NEGLIGENCE

ing from the sides of a ditch in which he was Whether a miner struck by material fallworking was guilty of contributory negligence held, under the evidence, for the jury.

[7] In support of appellants' plea of estoppel, an issue was made as to whether the check for $500, given by appellants to appel-2. lee on October 2, 1911, in part payment of the contract price, contained the recital that the

$500 was paid "on contract of reconstructing the R. D. Kendall March 23, 1911." Appellants insist that the check shows the contract was limited to the contract of March 23d, and therefore supports their contention that they did not know anything about the extra work which was not embraced in that contract. Appellee insists, however, that the recital above referred to was written on the face of the check after it had been paid and returned to the possession of appellants. We attach little importance, however, to the check, conceding that it was originally written as it now reads, since it is not a substantial contradiction of the contract as claimed by the appellee.

[8] Furthermore, there is no merit in appellants' contention that they lost reasonably certain profits by appellee's failure to finish the boat before December 1, 1911. The alleged lost contracts would have been performed during the summer of 1911; and, although the original contract of March 23d contemplated that the boat should be finished by June 10th, the extended contracts of May and August necessarily postponed the date of completion. This fact is shown by the appellee, and evidently it was but a necessary change consequent upon the extended contracts.

From a careful reading of the testimony we have reached the conclusion that the

weight of the evidence supports the finding of

the chancellor.

--

[ocr errors]

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 1089, 1090, 1092-1132; Dec. Dig. § 289.*1

3. Master and SERVANT (§§ 206, 219, 226*) INJURY TO SERVANT-ASSUMPTION OF RISK.

and the ordinary risks of his employment, but An employé assumes the obvious dangers not risks created by the employer's negligence. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 550, 610-624, 659-667; Dec. Dig. §§ 206, 219, 226.*]

4. MASTER AND SERVANT (§ 206*)—INJURY TO SERVANT-ASSUMPTION OF RISK.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 557; Dec. Dig. § 211.*] 6. MASTER AND SERVANT (§§ 311, 313*)-INJURY TO SERVANT-LIABILITY OF FOREMAN.

the men is jointly and severally liable with the A superior servant directing the work and employer for a failure to perform personal du[9] If, however, we were in any doubt upon ties, whether by misfeasance or nonfeasance, this subject, we think the judgment of the resulting in injury to one of the men; but he chancellor should be affirmed under the well-nish the men a reasonably safe place in which is not liable for the employer's failure to furrecognized rule that, where the proof is con- to work. tradictory and the mind is left in doubt, the judgment of the chancellor will not be disturbed. Byassee v. Evans, 143 Ky. 415, 136 S. W. 857; Kirkpatrick's Ex'r v. Rehkopf, 144 Ky. 134, 137 S. W. 862; Wathen v. Wathen, 149 Ky. 505, 149 S. W. 902; Bond v. Bond, 150 Ky. 392, 150 S. W. 363.

7. MASter and ServANT (§ 311*)-INJURY_TO SERVANT NEGLIGENCE OF SUPERIOR EMPLOYÉ. Where it was the duty of a superior employé directing the work of mining and the men Finding no substantial error in the rec to inspect a ditch after an explosion, to discovord, the judgment is affirmed.

er whether the men would be in danger from falling material, but did not perform that personal duty, and, without inspection, ordered the men to work in the ditch, and, in obedience thereto, one of them, while at work, was injured by material falling on him, the superior employé was guilty of actionable negligence.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 1236; Dec. Dig. § 311.*] & TRIAL (§ 129*)-ARGUMENT OF COUNSEL.

Argument of counsel for the successful party made in answer to portions of the argument of counsel for the defeated party is not ground for reversal.

An employé creating a danger in the progress of the work must protect himself therefrom.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 550; Dec. Dig § 206.*] 5. MASTER AND SERVANT (§ 211*)-INJURY TO SERVANT-ASSUMPTION OF RISK.

An employé in a mine required only to remove dirt and ore torn loose by blasting did not assume the risk of injury by material falling from the sides of the ditch after he had been ordered to work, for it was the duty of nish him a reasonably safe place, and the duty the employer to exercise ordinary care to furof the foreman to examine the walls of the ditch before ordering the employé to work.

EVANS CHEMICAL WORKS et al. v. BALL. (Court of Appeals of Kentucky. June 4, 1914.) 1. MASTER AND SERVANT (§ 278*)-INJURY TO SERVANT NEGLIGENCE EVIDENCE QUESTION FOR JURY.

in an action for injuries to a miner struck by material falling from the sides of a ditch, evidence held to show that the employer negligently failed to make the working place rea

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1236, 1238; Dec. Dig. 311, 313.*]

[Ed. Note. For other cases, see Trial, Cent. Dig. § 310; Dec. Dig. § 129.*1

ORD.

9. APPEAL AND ERROR (§ 925*)—QUESTIONS | ginning work. While Ball was standing on REVIEWABLE-ARGUMENT OF COUNSEL-RECa bench at the bottom of the mine shoveling dirt and ore from the bench that had been blown up with dynamite, and which was just above the one on which he was standing, a large lump of ore and dirt, weighing proba

Where the argument of counsel for the successful party objected to by the defeated party was claimed to have been made in response to argument of counsel for the defeated party, but was not in the record, the court on appeal must assume that the argument object-bly 500 pounds, fell from the side of the ditch ed to was an appropriate reply, especially several feet above where he was standing where the trial judge declined to rule that the and rolled against his leg, breaking it badly. argument of counsel for the successful party was objectionable.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3729-3734; Dec. Dig. 925.*]

Appeal from Circuit Court, Boyle County. Action by Dank Ball against the Evans Chemical Works and another. From a judgment for plaintiff, defendants appeal. Affirmed.

In this action to recover damages for the injuries thus sustained, the suit was brought against the Chemical Works and Jordon, the foreman in charge of the laborers, including Ball, and a judgment rendered against both of the defendants. A reversal of the judgbe noticed in the opinion; but the chief one ment is asked upon several grounds that will is that the jury should have been directed to return a verdict for the defendants.

Jay W. Harlan, Chas. H. Rodes, and Nelson D. Rodes, all of Danville, for appellants. Emmet Puryear, John W. Rawlings, and Rob-him ert Harding, all of Danville, for appellee.

The case for the plaintiff's was practiced upon the theory that the defendants owed the duty of exercising ordinary care to furnish him a reasonably safe place in which to work, and that his injuries were caused by a failure upon their part to perform this duty, and upon the further ground that he was ordered by the foreman, Jordon, to go down in the mine and begin work at the time and place he did, when he did not know, but Jordon did know, or should have known, of the danger to which he would be exposed from large lumps of dirt and ore that had been jarred loose by the dynamite falling from the side of the ditch.

CARROLL, J. The appellee, Dank Ball, was engaged as a laborer by the Evans Chemical Works, which was engaged in the mining of barytes in Boyle county. The mine in which he was working at the time he received the injuries complained of was an open ditch about 25 feet wide at the top of the ground, about 12 feet wide at the bottom, and of a depth varying between 15 and 25 feet. The sides of the ditch were composed of rock and dirt, and sloped outward. The ditch was about 50 feet long, and was in the form of steps ascending toward both ends from a point near the center at the bottom. These steps were called "benches" or "banks," and consisted of ore and dirt which was be ing excavated. Each bank or bench rose from 4 to 6 feet above the next lower bench or bank, and had a flat top several feet in width and length.

In mining the ore, dynamite would be placed in holes made in one of these benches and exploded, thus causing the ore and dirt in the bench to be torn up. After an explosion was made, the employés would return to the ditch and begin the work of digging the ore from the bench which had been torn up by the dynamite, and would pick and shovel the ore and dirt down to the bench on which they were standing, or put it immediately into the hoisting boxes. The miners in thus working would stand on the bench just below the one that had been torn up by the dynamite, and, after they had shoveled the dirt and ore to the bench on which they were standing, or direct into the boxes, it would be hoisted to the top of the ditch; the dirt being put in one pile, and the ore in another.

On the day Ball was injured two blasts of dynamite were set off in a bench, and, when the smoke had cleared away, the foreman, Jordon, and several laborers, including Ball, went down in the mine for the purpose of be

The theory of the defense was that the plaintiff had himself examined the banks and the place at which he was put to work, and that it was his duty to see that the place was reasonably safe before he commenced work, and, if it was not, to take such precautions as might be necessary to make it reasonably safe. Another defense was that the work in which the plaintiff was engaged caused the lump of dirt and ore to fall from the bench that had been torn up by the dynamite, and that the company did not owe him the duty of keeping a place safe that was being constantly made dangerous in the progress of the work in which he was engaged.

The appellee testified:

"We had cleaned up the dirt that had fallen off of the bank, and I think had dug a little, too; I am not certain. I was down shoveling the dirt that I had dug off or had about cleaned up, and I had started over after a shovel of dirt, when the lump hit me right in the breast. Q. What happened when you started over after a shovel of dirt? A. Well, that dirt hit me. The dirt that had fell from the bank-slipped out of the bank a little above my head; a great big lump of dirt hit me right in the breast, and it seemed like it ran right down me and shot dirt was it that fell out of the bank? A. I supthat leg and broke it. Q. How big a prug of pose it weighed some 500 or 600 pounds. Q. Did you know before it fell that it was in a A. No, sir. Q. Was there position to fall? anything about it that attracted your attention, or that you saw that indicated to you that it was about to fall? A. No, sir; I was going

down after a shovel of dirt, just shoveling dirt and putting it in the box, and as I went over after the dirt it struck me. Q. Gave way and struck you? A. Yes, sir. Q. Where were those blasts put in by Jordon, the foreman, just before you went in down there? A. They were about 5 or 6 feet in front of me; they were above my head some. Q. Who set them off, do you know? A. I think Jim Jordon. Q. Then, after that was done, what did Mr. Jordon order and direct you and the other hands to do? A. Well, we all sort of looked for the dynamite that had blowed off and shot off, and he just made a remark, 'We didn't blow much of it off, but we loosened it up so we can dig it easy,' or something of that kind. Q. What did he tell you to do? A. He told us all to go down in the mine, and led the way. Q. To do what? A. I went on at the same work I had been doing. Q. What did he tell you to go and do? A. Digging barytes. Q. And after he told you to go to work digging barytes, did you obey his order to do that? A. Yes, sir; we obeyed his orders and went on to work. Q. How long after the blast was it that he gave you that order to go down there? A. I suppose 10 or 15 minutes. Q. Did you know that it was unsafe for you to go down there into the mines? A. No, sir. Q. Did you know that it was dangerous for you to go down there and obey that order? A. No, sir. Q. At the time you were hurt, you were digging in that bench and digging barytes out of that bench? A. I had been. I was shoveling when I was hurt. Q. But prior to that you had been digging out of this bench? A. Yes, sir. Q. This lump of dirt that fell, fell ou of this bench in front of you? A. No, sir; kind of in front of me, kind of on the side. Q. It was out of the bench, wasn't it? A. Yes, sir. Q. Did it fall out of the face of the bench? A. No, sir. Q. Where did it fall? A. Sort of on this side. Q. I will ask you what instructions you had from Mr. Jordon, the foreman, relative to digging this barytes, as to what your duties were. A. He told us to dig barytes. Q. I will ask you if he didn't tell you that it was a part of your duty, in digging barytes, to keep a lookout, and, after a blast was shot, to go up and help clean off all the loose dirt and prize all the loose dirt down, so that it would not fall, and it would be safe to work in the ditch. A. No, sir. Q. I will ask you if that wasn't a part of your duties to do it. A. He never had ordered me to do anything of that kind. Q. In digging into this bank, and digging out this barytes, would you not loosen the other dirt which was around it? A. No, sir; we could not loosen it much on account of its being so tough and hard. Just what a fellow could dig out with his pick was about all he could get. That was the reason they put in the dynamite, to loosen it up so that it wouldn't be so tough and hard to dig."

Jordon, the foreman, testified that, when they came back to the ditch after the dynamite had been exploded, he told Ball and Pollard and other workmen to prize all the loose stuff down where the shots were fired, for fear something might fall, and that they

did so.

was expected to do? A. Well, I gave them all their instruction. Q. Did you give him any? A. Well, I don't know as I give him any. I gave general instructions to all of them that after a shot was fired, if there was anything loose lying around anywhere that would probably fall and hurt them, to prize it off, and not go into anything that they thought was dangerous. Q. Did you know that this lump of dirt was hanging or loose? A. No, sir. Q. Had you been there to see what effect that dynamite had on these walls? A. Yes, sir; on top I had. Q. Well, down in that place there? A. No, sir; I don't know as I had. Q. Well, didn't you know what it would do? A. Yes, sir; I knowed what it would do. Q. And didn't you know what you put it in there to do? A. Certainly; I put it in there to loosen up the dirt. Q. Well, I am asking you, isn't it a fact that, although you knew that bad condition existed down there from those blasts, that you yourself didn't go down there to see and examine whether it was safe for those men to go down there? A. Not underneath where it fell; no, sir. Q. Then you ordered those men to go down into a place of that kind, without going to see whether it was safe or not? A. No, sir; I ordered them to go down after they got the loose stuff punched down."

"Q. In what manner did they attempt to comply with this order, and how did they attempt to do it? A. Well, they had taken some crowbars and was prizing off where the stuff was loose; where we saw a crack, prizing it off, and throwing it overboard. Q. Did you see Mr. Pollard doing that? A. Yes, sir. Q. Did you see Mr. Ball working prior to the falling of the dirt in that ditch? A. Yes, sir. Q. What portion of the bench was he working on? Was it anywhere close to the place where the dirt fell from? A. Yes, sir. Q. Did you give Mr. Ball any instructions as to how he was to

This witness further said that he made no examination of the sides of the ditch at any place except by standing on top of the ground and making such an examination as could have been made from there, and that he did not discover from that point any signs of danger at the place where Ball was working. To make this clear, we quote further from the evidence of this witness:

"Q. Then, after that blasting was in there, you didn't make any examination of any of the walls? A. Yes, sir; on top. Q. You examined the top? Where did you examine it? A. I examined at the top for cracks where the shot was put in. Q. What did you find? A. Found some cracks opened up. Q. And you knew where they would extend to? A. I knew the cracks were there. Q. And you expected these cracks to extend way down there to the bottom of the pit? A. Why, certainly, yes, sir. * * I didn't see the piece underneath that fell on him. Q. You didn't look to see? A. No, sir; I didn't see it. Q. If your duty required you to keep that place safe for these men to work in there, why couldn't you have gone there to see whether that was safe? A. Probably there would have been somebody else in the same condition; I had to look after them all. Q. Why didn't you look after the whole thing before you sent any of them in? A. I did see after it the best I knew. Q. It was your duty as foreman there to keep that place reasonably safe for those men to work? A. It Q. was their duty to look out for themselves. those men down in there, to examine and see It was your duty, wasn't it, before sending whether it was safe for them to go down there? A. Yes, sir; and I did. Q. You say you did do that? A. I had done it, as far as I knew. Q. And you made no examination, although it was your duty to see whether it was safe, except at the top? A. Except at the top, where the crack was opened up and they got any to prize oif. Q. And you knew, if it was broken off at the top, that it would go down to where those steps were? A. I didn't know it. Q. You put it in there to do it? A. I put it in there to do it; yes, sir."

Without relating further of the evidence, it shows that Jordon, the foreman, and Ball, and perhaps some of the other men, before going down into the mine, made some exami

1

there was any loose dirt or other substances | Boone, 138 Ky. 700, 128 S. W. 1087; Dyer v.
at or near the surface that would likely fall
into the mine, but that no examination or in-
spection of any kind was made to discover
the condition of the sides of the walls at or
near the place where Ball was working.

Pauley Jail Building Co., 144 Ky. 592, 139 S.
W. 789; Warren v. Jeunesse, 122 S. W. 862;
Fluehart Collieries Co. v. Elam, 151 Ky. 47,
151 S. W. 34.

Under the facts as we have stated them, we think Jordon, the foreman, before sending the men down in the bottom of the mine to work, owed them the duty of making, or having made, some inspection or examination of the sides of the walls for the purpose of discovering, or attempting to discover, if the explosion had loosened any large lump that would be liable to fall and injure the laborers while at their work. But this he did not do, nor was the place reasonably safe, although it was the duty of the chemical works to have exercised ordinary care to make it so. There is much dispute in the evidence as to whether it was practicable to box this mine or timber it so as to prevent the sides from falling in; but we think the fact that the mine was not timbered or boxed imposed upon the foreman the duty of exercising greater care to see if there was any danger of the wall falling in, as he might reasonably have anticipated so close after the explosion that some parts of the walls of the mine would be loosened and shattered and likely to fall. The evidence shows that the purpose of putting dynamite in was to loosen up the dirt in the benches, and that the explosion had also the further effect of unsettling and disturbing the entire formation and condition of the sides, leaving them subject to cave in.

[1, 2] Upon the whole case, there was sufficient evidence to take the case to the jury upon the ground that the chemical works failed in the performance of its duty to exercise ordinary care to make the place reasonably safe, and that Jordon committed a breach of duty in ordering the men into the mine when and as he did. And there was not sufficient evidence to show that, as a matter of law, Ball was guilty of such contributory negligence as would defeat a recovery.

It is earnestly insisted that Ball assumed the risk incident to the work, and that the falling of lumps of clay like the one that struck him was one of the incidents of the work, and therefore the defendants should not be held liable for the injury he sustained. [3] There is a class of cases holding that, where the danger is obvious, the laborer assumes the risk, and the employer will not be liable for injuries that happen to him; and it is also true that the laborer assumes the ordinary risk of the employment, but he does not assume risks that are created by the negligence of the master. Examples of this class of cases may be found in Wilson v. Chess & Wymond Co., 117 Ky. 567, 78 S. W. 453, 25 Ky. Law Rep. 1655; Clifton v. C. & O. Ry. Co., 102 S. W. 247, 31 Ky. Law Rep. 431; Burch v. Louisville Car Wheel Co., 146

[4] There is another class of cases holding that, where the laborer creates the danger in the progress of the work, he must take care to protect himself. Examples of this class of cases may be found in Smith v. North Jellico Coal Co., 131 Ky. 196, 114 S. W. 785, 28 L. R. A. (N. S.) 1266; Boyd v. Crescent Coal Co., 141 Ky. 787, 133 S. W. 777; Proctor Coal Co. v. Beaver, 151 Ky. 839, 152 S. W. 965; Wight v. Cumberland Telephone & Telegraph Co., 137 Ky. 299, 125 S. W. 718.

[5] But the facts of this case do not bring it within the scope of the principle announced in these cases. The danger was not obvious, nor was it created by the work Ball was doing. The dangerous conditions were made by the explosion of the dynamite, and Ball, when injured, was only removing the dirt and ore that had been torn loose by the explosion.

It was, of course, his duty to exercise ordinary care to protect himself, and to discover the danger, and both of these things there is evidence to show that he did. It was likewise the duty of the chemical works to exercise ordinary care to furnish him a reasonably safe place in which to work, and the duty of Jordon to have made an examination of the walls, and there is evidence tending to show that neither of them performed their respective duties.

[6] It is further urged that the court should have removed the case against the chemical works, a foreign corporation, to the federal court upon its motion made at the conclusion of the evidence for the plaintiff, upon the ground that there was no evidence even tending to fix liability for the accident upon Jordon, the resident defendant, and, this being so, it is said the joinder was fraudulent. It is further urged that there was no evidence tending to show that Jordon was liable, and so the jury should have been directed to return a verdict in his favor.

Both of these contentions will be disposed of together, as they involve the single question whether there was any evidence sufficient to authorize the joinder of Jordon as a defendant and the submission to the jury of the case against him. Formerly it was denied that a superior officer such as Jordon was, who in this capacity acted for the master in directing and controlling the conduct or movements of his subordinates, could be subjected to liability at the instance of a subordinate who had been injured by reason of his negligence, whether called nonfeasance or misfeasance, in failing to perform duties imposed upon him by virtue of his position, such as the duty of exercising ordinary care to protect the subordinate from danger or the duty of not ordering him into places of dan

down after a shovel of dirt, just shoveling dirt and putting it in the box, and as I went over after the dirt it struck me. Q. Gave way and struck you? A. Yes, sir. Q. Where were those blasts put in by Jordon, the foreman, just before you went in down there? A. They were about 5 or 6 feet in front of me; they were above my head some. Q. Who set them off, do you know? A. I think Jim Jordon. Q. Then, after that was done, what did Mr. Jordon order and direct you and the other hands to do? A. Well, we all sort of looked for the dynamite that had blowed off and shot off, and he just made a remark, 'We didn't blow much of it off, but we loosened it up so we can dig it easy,' or something of that kind. Q. What did he tell you to do? A. He told us all to go down in the mine, and led the way. Q. To do what? A. I went on at the same work I had been doing. Q. What did he tell you to go and do? A. Digging barytes. Q. And after he told you to go to work digging barytes, did you obey his order to do that? A. Yes, sir; we obeyed his orders and went on to work. Q. How long after the blast was it that he gave you that order to go down there? A. I suppose 10 or 15 minutes. Q. Did you know that it was unsafe for you to go down there into the mines? A. No, sir. Q. Did you know that it was dangerous for you to go down there and obey that order? A. No, sir. Q. At the time you were hurt, you were digging in that bench and digging barytes out of that bench? A. I had been. I was shoveling when I was hurt. Q. But prior to that you had been digging out of this bench? A. Yes, sir. Q. This lump of dirt that fell, fell out of this bench in front of you? A. No, sir; kind of in front of me, kind of on the side. Q. It was out of the bench, wasn't it? A. Yes, sir. Q. Did it fall out of the face of the bench? A. No, sir. Q. Where did it fall? A. Sort of on this side. Q. I will ask you what instructions you had from Mr. Jordon, the foreman, relative to digging this barytes, as to what your duties were. A. He told us to dig barytes. Q. I will ask you if he didn't tell you that it was a part of your duty, in digging barytes, to keep a lookout, and, after a blast was shot, to go up and help clean off all the loose dirt and prize all the loose dirt down, so that it would not fall, and it would be safe to work in the ditch. A. No, sir. Q. I will ask you if that wasn't a part of your duties to do it. A. He never had ordered me to do anything of that kind. Q. In digging into this bank, and digging out this barytes, would you not loosen the other dirt which was around it? A. No, sir; we could not loosen it much on account of its being so tough and hard. Just what a fellow could dig out with his pick was about all he could get. That was the reason they put in the dynamite, to loosen it up so that it wouldn't be so tough and hard to dig."

was expected to do? A. Well, I gave them all
their instruction. Q. Did you give him any?
A. Well, I don't know as I give him any. I
gave general instructions to all of them that
after a shot was fired, if there was anything
loose lying around anywhere that would prob-
ably fall and hurt them, to prize it off, and
not go into anything that they thought was
dangerous. Q. Did you know that this lump
of dirt was hanging or loose? A. No, sir. Q.
Had you been there to see what effect that
dynamite had on these walls? A. Yes, sir; on
top I had. Q. Well, down in that place there?
A. No, sir; I don't know as I had. Q. Well,
didn't you know what it would do? A. Yes,
sir; I knowed what it would do. Q. And didn't
you know what you put it in there to do?
Certainly; I put it in there to loosen up the
dirt. Q. Well, I am asking you, isn't it a fact
that, although you knew that bad condition
existed down there from those blasts, that you
yourself didn't go down there to see and ex-
amine whether it was safe for those men to go
down there? A. Not underneath where it fell;
no, sir. Q. Then you ordered those men
go down into a place of that kind, without
going to see whether it was safe or not?
No, sir; I ordered them to go down after they
got the loose stuff punched down."

A.

to

A.

"Q. In what manner did they attempt to comply with this order, and how did they attempt to do it? A. Well, they had taken some crowbars and was prizing off where the stuff was loose; where we saw a crack, prizing off, and throwing it overboard. Q. Did you see Mr. Pollard doing that? A. Yes, sir. Q. Did you see Mr. Ball working prior to the falling of the dirt in that ditch? A. Yes, sir. Q. What portion of the bench was he working on? Was it anywhere close to the place where the dirt fell from? A. Yes, sir. Q. Did you give Mr. Ball any instructions as to how he was to

This witness further said that he made no examination of the sides of the ditch at any place except by standing on top of the ground and making such an examination as could have been made from there, and that he did not discover from that point any signs of danger at the place where Ball was working. Το make this clear, we quote further from the evidence of this witness:

"Q. Then, after that blasting was in there, you didn't make any examination of any of the walls? A. Yes, sir; on top. Q. You examined the top? Where did you examine it? A. I examined at the top for cracks where the shot was put in. Q. What did you find? A. Found some cracks opened up. Q. And you knew where they would extend to? A. I knew the cracks were there. Q. And you expected these cracks to extend way down there to the bottom of the pit? A. Why, certainly, yes, sir. * I didn't see the piece underneath that fell on him. Q. You didn't look to see? A. No, sir; I didn't see it. Q. If your duty required you to keep that place safe for these men to work in there, why couldn't you have gone there to see whether that was safe? A. Probably there would have been somebody else in the same condition; I had to look after them thing before you sent any of them in? all. Q. Why didn't you look after the whole A. I did see after it the best I knew. Q. It was your duty as foreman there to keep that place reasonably safe for those men to work? A. It was their duty to look out for themselves. Q. those men down in there, to examine and see It was your duty, wasn't it, before sending whether it was safe for them to go down there? A. Yes, sir; and I did. Q. You say you did do that? A. I had done it, as far as I knew.

Jordon, the foreman, testified that, when they came back to the ditch after the dynamite had been exploded, he told Ball and Pollard and other workmen to prize all the loose stuff down where the shots were fired, for fear something might fall, and that theyQ. And you made no examination, although it was your duty to see whether it was safe, except at the top? A. Except at the top, where the crack was opened up and they got any to prize off. Q. And you knew, if it was broken off at the top, that it would go down to where those steps were? A. I didn't know it. Q. You put it in there to do it? A. I put it in there to do it; yes, sir."

did so.

Without relating further of the evidence, it shows that Jordon, the foreman, and Ball, and perhaps some of the other men, before going down into the mine, made some exami

« 이전계속 »