#### MINKKINEN *v.*QUINCY MINING CO.

1. New Trial — Appeal and Error — Motion.

After settling a bill of exceptions, and after issuance of a writ of error from the Supreme Court, the circuit court has no jurisdiction to grant a new trial.

2. Appeal and Error — Saving Questions for Review.

The point that there was a variance between declaration and proofs will not be determined on appeal if it was not presented to the trial court.

3. Master and Servant — Mines and Minino — Assumption of Risk — Contributory Negligence.

Evidence examined and *held,*to present questions of fact whether plaintiff assumed the risk of rock falling from a hanging wall under which he was working, or whether he was guilty of negligence barring his recovery.

*280Error to Houghton; Streeter, J.

Submitted December 14, 1911.

(Docket No. 80.)

Decided March 29, 1912.

Rehearing denied June 1,1912.

Case by Nick Minkkinen against the Quincy Mining Company for personal injuries. Judgment for plaintiff. Defendant brings error.

Affirmed.

*Hanchette & Lawton,*for appellant.

*O’Brien & Le Gfendre,*for appellee.

Moore, C. J.

This is a personal injury case. The plaintiff was a trammer, working for defendant company, and was injured by some rock falling upon him while he was scratching down ore upon a soller at the foot of the stope, in order to fill his car. At the close of the testimony on the part of the plaintiff, and again at the close of all the testimony, the defendant moved for a directed verdict. These motions were overruled, and the case was submitted to the jury, which returned a verdict in favor of the plaintiff. Judgment was entered in favor of the plaintiff. The case is brought here by writ of error. The accompanying cut will help to understand the situation.

The first sketch shows the stope with its hanging wall, its foot wall, the stulls in place to receive the ore as it is broken down, the platform called a soller, upon which the ore rests when it is let through the opening, shown in the second sketch, from which platform it is loaded upon the car standing upon the rails, shown in the first sketch and opposite the soller or platform. The stulls, the opening between them, and the platform shown in the second sketch are what the witnesses call a “mill.”

The record is to the effect that the vein is taken out between the foot wall and the hanging wall and the hanging wall which is left is a permanent roof, which is supposed to be and is usually kept reasonably safe by barring down any loose pieces of rock which may be loosened by blasting or otherwise. The hanging wall is not blasted. *281The trammers do not attempt to tram it out. It is the custom for men, known as barmen, or for miners, to take down whatever is loose in the hanging wall. The work of stoping out a piece of ground may last for months.

Sketch of portion of stope on 59th level south of No. 7 shaft.



Miners must go up and down under the hanging wall from underneath which the copper rock has been blasted. Trammers must go up in the stope for the purpose of scraping down the rock to the soller or level to be shoveled *282into the tram car. The trammers are not given tools to keep this hanging wall safe. They may be required to work under it for months. The evidence shows, also, as will appear more in detail later, that the shift boss also goes around and looks over the hanging to see that it is safe.

Counsel for defendant discuss the assignments of error under the heads of assumption of risk; contributory negligence of plaintiff as a matter of law; variance between the pleadings and proofs; error in denying a motion for new trial because of excessive verdict; errors in the translation of testimony, and other reasons not necessary to further state.

We will take up the last of these groups first. The bill of exceptions was signed November 9, 1910, and a writ of error taken out. The motion for a new trial was made February 1, 1911. This being the situation of the case, the judge very properly held the case was out of his court, and that he had no jurisdiction to dispose of the motion. We, of course, cannot review his action in that regard.

As to the variance between pleadings and proofs, we have searched the record in vain for anything to indicate that this question was presented to and passed upon by the trial judge. For that reason we decline to consider it.

It is claimed the plaintiff assumed the risk of the conditions as he found them, which resulted in his injury. It is also claimed that he learned what the conditions were, and that, knowing these conditions, his continuing to work was negligence which contributed to his injury, and that for each of these reasons the court should have directed a verdict in favor of defendant, counsel citing, in support of their contention, *Petaja*v. *Mining Co.,*106 Mich. 463 (64 N. W. 335, 66 N. W. 951, 32 L. R. A. 435, 58 Am. St. Rep. 505); *Ritzema*v. *Brick Co.,*152 Mich.*75*(115 N. W. 705); *Lukovski*v. *Railroad Co.,*164 Mich. 361 (129 N. W.*707),*and many other cases. It becomes important to consider that part of the testimony *283most favorable to plaintiff to decide whether there was a case to be submitted to the jury.

One of the witnesses testified:

> “ On the day of the injuries to Nick, Nick and I were working together. We were tramming rock on the fifty-fourth level, tramming it out to No. 7 shaft. We had trammed out 15 cars during the day. We got those 15 cars from the drift and cutting out and from the stope also. Two cars I think we took from that stope. I am speaking now of the stope where Nick was afterwards hurt. We got two cars from that stope.

> *“Q.*When did you get those cars ?

> *“A.*I recollect it being in the forenoon, somewhere around 9 o’clock in the morning. Up to the time we got those cars, the shift boss had not come around and seen us that I know. While we were getting those cars from the stope, we heard rock fall from the hanging wall. We believed it came from the hanging in the stope. We were then shoveling dirt from the soller into the car. The soller is the place where the dirt is run down, and from there shoveled to the car. When we got through hauling those fifteen cars of rock out to the shaft, it was 4 o’clock. Then we put on our coats and we sat down, near the shaft. Captain Maunders came there then. I refer to the same shift boss I have spoken of before. I had a talk with Captain Maunders. The captain asked ‘How many cars have you filled?’ I told him 15 cars. He says that was too little. We told him that there was no more dirt, and that was a poor place. I might in some way give the conversation in English that I had with the captain. (Witness speaks English.) Captain say, ‘How many car you fill?’ I say, ‘ Fifteen cars.’ Captain say. ‘That’s small number.’ He say, ‘Go fill one more car.’ I say, ‘No more dirt, that place no good.’ He say, ‘That place all right. I see today. Go fill one more car or else go up.’ I told the captain about I see rock fall there. (Witness speaks English.) I see that place no good. I see small rock down on hanging.

> "Q. Then what did the captain say ?

> *“A.*He say, ‘That place bully good. I see today.’

> *“Q.*And he told you to go ahead and go to work there or go up, did he ?

> *284
>       *liQ.*After that, what did you men do then ?

> *“A.*Then we went in.

> *“Q.*Well, what stope did you go into ?

> *“A.*The inside stope.

> *CCQ.*Was that the one the captain referred to ?

> *"A.*Yes; all of the rock then had been taken away from the soller already. We went then in the stope to get rock. Nick Minkkinen went with me. We went up from the soller approximately between 15 and 20 feet. I went on the south side of the mill, and Nick went on the north side. I might have been 10 feet or so away from Nick. We were working up there less than half an hour before Nick got hurt, not a full half hour. During that half hour, Nick and I shoveled dirt down into the soller. While we were working there the rock fell down from the hanging, and injured Nick. I saw it just then when it fell down. It was lots of it, and I can’t just state how many, but it was a big pile. I don’t know that our work in shoveling down there, my work or Nick’s work in shoveling the rock into the mill, loosened the rock in any way, but it should not loosen any way because we shoveled from the foot wall. We were shoveling the loose rock that had been blasted down by the miners before. The rock that we were shoveling was copper rock, and this rock that fell was from the hanging wall.

> “ When Nick was struck with the rock, he fell on the foot. I went to see him, what happened to him. I found him. There wasn’t much dirt on him. There were two rocks on him, the hanging rock. Not at first I didn’t examine Nick to see how he was hurt. I didn’t have time. I was just trying to move him away from that place. I moved him towards the place where I was at that time. Then two miners came over there, and together with them we carried him down, put him on the motor, and carried him out to the shaft. I can’t state positively how big a stope that was, how long it was along the level. It might have been 50 feet or more. It might have been more or less. There were miners working up to the top of the stope from the place where Nick and I were working at the time he was hurt. The miners were working 60 or 70 feet. That part of the stope was worked out, and the miners had carried this stope up 60 or 70 feet above that place. The rock that the miners blasted fell down the same level that is now in question; that is, it would run down the foot wall.

> *285“Q. And you men had shoveled out all that ran down there naturally ?

> “A. Yes; we were put there for the purpose of shoveling down enough to fill this car. The vein there between the foot and the hanging wall, at the place where Nick and I were shoveling down this rock, might have been eight or nine feet, and it might have been a little over. This rock that is blasted by the miners, the copper rock, might fill a portion of the space between the foot and hanging near the stalls, but not very extensively anyhow; so that, if I were standing on the foot there or on the rock that was lying on the foot, this hanging would be eight or nine feet above my head; right straight up it was very much higher, the stope running up, but, if you reached directly across to the hanging wall, it would be just about so you could reach it. I think it might have been eight or nine feet. The miners had not blasted that day in that stope before Nick got hurt. They usually blast once a day, in the evening. That’s just before quitting. Quitting time is about 5 o’clock.

> “ I have had quite a little experience as a trammer. I don’t recollect at once how long I was tramming before this injury occurred. I had trammed over a year then. During that time I had worked in the Quincy Mine altogether. In the Quincy mine as tramming is carried on there and was carried on before this injury, it didn’t belong to the trammers to look after the safety of the hanging wall. I think it’s'the captain’s work to look after the hanging wall in regard to loose rock, so that rock would not fall. I refer to the shift captain. That would be Captain Maunders.

> *“Q.*And do you know what men are employed under him to remove the loose rock from the hanging wall and inspect the wall ?

> *‘‘A.*There were such as barmen pinching it down.

> *“Q.*Now, did Captain Maunders use to hire and discharge men ?

> *“Q.*(Last question read to witness.)

> *“A.*Yes; I know that positively because he is the one took me to work, and I saw him discharging the men.”

This witness explained that, when the captain said “go ahead and go to work there or go up,” he understood it meant to go to work or be discharged.

On the cross-examination he said in part:

> *286“ Minkkinen and I were about 10 feet apart at the time the accident happened. I was on the south side of the mill and he was on the north side. I think it was 15 or 20 feet from the stulls; that is, we were 15 or 20 foot on the foot wall from the foot of the stulls. This third man that was helping us might have been near me, I am not positive about that, just where he was standing, but he was the same side as I was anyhow. I was scratching down dirt that was piled up there so as to bring it on the soller. Minkkinen was doing the same on his side. I had my back towards Minkkinen.

> *ICQ.*Now, could you touch the hanging with your hand there where you were standing ?

> *“A.*Not straight up we couldn’t touch the hanging.

> “Q. Well, could you touch it at all by reaching back a ways ? ***

> “A. Well, according to my estimate, the hanging was eight or nine feet, and we could reach that.

> *“Q.*You could reach that?

> *“A.*Yes.

> *“Q.*Now the hanging that was right over you, was that all good, nice hanging?

> “A. It must have been because nothing came down.

> “Q. You could see it could you, nicely

> *“A.*Yes; I could see that.

> *“Q.*And Minkkinen could see the hanging near him, could he?

> '‘A. Yes.

> ‘ * *Q.*Now did you look the hanging over that time when, you went there to get enough dirt for the last car ?

> “A. No; we didn’t have time to examine.

> *“Q.*Well, you looked at it, didn’t you ?

> “A. We looked at it.- _ .

> _ *tsQ.*Now is it customary when you go to a mill to fill a car to look around to see if it is all right?

> “A. Yes.

> “Q. You always do that don’t you?

> “A. Yes.

> *“Q.*And, if you see any piece of hanging that looks loose you either go and get a bar and bar it down, or have the miners come and bar it down for you ?

> “A. The trammers have no bar to pinch it down.

> *,lQ.*No; but you sometimes go and get a bar from the miners to pinch it down ?

> “A. In some cases, but, if going after the bar from the *287miners and get from them, the miners would then come to pinch it down.

> *ilQ.*That is, if you ask them to come and pinch it down, they will come, and do it for you ?

> *“A.*I think it doesn’t belong to the miners when they go up so high in the stope.

> *“Q.*Well, if you see a piece of loose hanging, you go to the miners, and get a bar, and have it taken down, or bring a miner with you and take it down ?

> *ilA.*They couldn’t be down in every case.

> “ Q. There were miners on the drill there wasn’t there, a little way from you?

> *“A.*Yes.

> “ *Q.*And you could have gone and got a bar from them or brought one of them there couldn’t you, that is, if you knew of any loose piece there ?

> *‘ A.*Yes; why not?

> “Q. And you frequently do that when you see a loose piece in your work as a trammer ?

> “A. It is done sometimes. We did not see any loose hanging around the place where Minkkinen was working. We didn’t know there was any. When miners working in a stope and they drill and blast down mine rock, I never saw them coming down and pinch the rock down, only from their own place. A miner always keeps his own hanging clean. I don’t know if the miners on that machine in that stope used this mill to go up and down to their work, and I didn’t see them going through that mill. They might, but I don’t remember just which way they went up. They might have went up the nest mill to it, but my recollection is that they might be going from another level, but I am not sure. I don’t know if this place where we were working scratching down dirt was the place where the machine was just moved up from a little while before. The machine was up high in the stope and the rock was there.

> *“Q.*The first that you knew that Minkkinen was hurt was after the rock had fallen on him ?

> *“A.*Yes.

> *i(Q.*So that you saw the. rock after it had come down and struck him ?

> *“A.*No; I saw when it started.

> *“Q.*Well, you had your back towards him, how could you see ?

> *288
>       *“A.*It just happened that I stood up at that time. I might have heard something just before then.

> *“Q.*Now was any of this rock that struck Minkkinen leaning on the stulls ?

> *“A.*It run down to the mill.

> *“Q.*And did some of it rest on the stulls before it came down?

> *“A.*That I don’t know, if it was resting on the stulls.

> *“Q.*It might have been ?

> “A. It might have been.

> *11 Mr. O'Brien:*Do you mean before it came down from the hanging or down from where ?

> *“Mr. Lawton:*Wherever it came from.

> *“Q.*This rock that struck Minkkinen was up on top of the dirt that he was scratching down ?

> “A. No; it fell from the hanging.

> “ Q. Well, it was up close to the top of the dirt ?

> “A. It wasn’t very far when he was shoveling there, and over his head it fell down.

> *“Q.*And some of the dirt came sliding down with it too?

> *“A.*Yes.

> *“Q.*Quite a lot of dirt came sliding down with this rock?

> “A. Not very much.

> *“Q.*You don’t know if Minkkinen loosened this rock up by scratching away the dirt or not do you ?

> *“A.*It didn’t loosen up on that account.

> *“Q.*You don’t know that for sure one way or the other do you ?

> “A. How could it happen, because that was up in the hanging, and he was scratching the dirt on the foot wall ?

> *“Q.*I am asking you if that might not have been the fact.

> *“A.*It might happen, but it appeared to me that it didn’t happen at that time.

> “Q. That’s your opinion of it ?

> “A. Yes. * * *

> *“Q.*Now, when you were out to the shaft as you state, Captain Maunders told you to go and tram another car or shovel another car full of dirt ?

> *“A.*Yes.

> *“Q.*Had he been along that level where you were working any time before during that shift ?

> “A. I don’t know if he had been there before.

> *289
>       *“Q.*You didn’t see him in there before?

> *icA.*Not that I remember.

> *“Q.*Was the trammer boss in there ?

> “M. I don’t remember positively. He might have been there once or so.

> “Q. Now Mr. Maunders’ duties as a shift boss is to go around and take the men’s time, put a mark down in his book?

> *“A.*It might be.

> “Q. Well, don’t you know that he keeps the time of the men?

> “A. Yes.

> *“Q.*Now, will you state again what Maunders told you to do when you quit work there you say at 4 o’clock ?

> *“A.*He told us to get one more car.

> *“Q.*Is that exactly what he told you ?

> *“A.*Yes; he told us to find one more car.

> *“Q.*So you went back to get another car?

> *(‘A.*Yes.”

It will not be necessary to repeat what has already been quoted.

Captain Jacobs testified, on the cross-examination, in part as follows:

> “ *Cross-Examination by Mr. O’Brien:*In No. *7*shaft there was about 300 men employed, somewhere around that, I guess, 250. Those men consisted of miners and timbermen and trammers, no barmen. The timbermen go around putting in timber. On this shift Captain Maunders had full charge of the operations there. He had charge looking over the trammers and all that. He had a right, if there was any stope to be cleaned out — he had a right to put them there. He had a right to keep the trammers working. He had all the right that I would have there to keep them at work. That is true. I looked after two shafts, No. 2 shaft and No. *7.*I would not be able to go down in No. *7*shaft every day all the time. I can go from one shaft to the other. Our shafts are numbered wrong. We got *7*on the lower and jump to No. 2. I wouldn’t go down every day, about twice or three times a week. When I was not down, the only representative the company had in the mine was the shift captain. On that shift at that time was Captain Maunders. His full name is Thomas Maunders. Mr. Maun*290ders had the right to send a man up to the office if he didn’t tend to his work; and, if he disobeyed his orders, he had a right to send them up. That meant I should investigate the matter, and give him his time if he didn’t want to work. If Captain Maunders said he wouldn’t obey orders, I suppose I would have to give him his time.

> “ If the trammer complained of a place being dangerous, it would be the duty of the shift boss or trammer boss to investigate it. The shift boss would look at it to see if it was all right. If he had said he had seen it and it was all right, they would have to go to work, but they wouldn’t go under loose ground *if they knew it;*but in a matter of that kind they would be supposed to take his judgment, instead of their own. As a matter of fact his judgment would be better than their judgment.

> “It doesn’t take much experience to detect loose rock in the hanging wall. If a man is there four or five years, he should know loose rock. If there is no crack, you can give it a rap, and see if it is loose. They test it sometimes with a bar or a sledge. By tapping it if it’s loose, it has a drummy sound, and, if it’s solid, it sounds solid. The miners in their own working place and own stopes tend to that first thing. They are supplied bars for that purpose; and the barmen are supplied with bars to bar down any loose ground. The trammers are supplied with picks and sledge. The sledge is for the purpose of breaking up big boulders. When a rock is so big they can’t manage it by breaking it up with the sledge, they blast it.

> “We don’t expect the trammers to spend much time in pinching down loose rock if there is loose rock in the next mill. We don’t expect them to spend much time in pinching down loose rock. If they find that a place, a particular mill, is dangerous, and that there is loose rock, they are supposed to go to another mill. The reason of that is that they are supposed to keep the skip going or put in such an amount of rock. They have got to get in a certain amount of rock a day; and the amount of rock they are supposed to tram is so regulated that it keeps them all the time on the go. The duty of the trammer is to tram rock. It is true we do have a system in the mine of keeping the place reasonably safe for the trammers as to loose rock. We have all cutting out stopes. The miners bar down all the loose rock, and in the mills; so that the man that goes ahead of them in that respect would be either— the shift boss would send the barmen in there on a par*291ticular occasion if he found it was loose, or else order the miners to come down from the stopes and bar down. * * *

> “ After the trammer has reported to the shift captain and the shift captain said it’s all right to go ahead and work, they are supposed to work. When the shift captain goes around through the mine, he has an eye out for loose rock. He looks around for loose rock, going through the levels, because, after blasting, there is a tendency to sort of shake up the hanging wall, shakes up some loose ground. The reverberation is liable to make the hanging scale off or flake off some in some places. Our hanging is pretty good in most of the stopes. If we find it is breaking off, we put timber in. When a man hears fine dirt falling from the hanging, sometimes it is an indication that there is loose rock up there in larger quantities, sometimes it isn’t. Sometimes in blasting a little loose copper rock is up there and after a little comes down. Sometimes a large fall of hanging rock is preceded by small pieces coming down, sometimes. That’s always looked upon as an indication of danger to a man working in a mine.”

Captain Maunders testified in part as follows:

> “We don’t mine the hanging wall at all if we can keep out of it. Sometimes a miner will get into it by mistake, but he is not supposed to get into it if he can help it. The hanging is left intact as near as we can get at it. When the blasting is done, it has a tendency to shake up the hanging.

> “ *Q.*And in places it is necessary to look over the hanging and make it safe, pinch it down ?

> “A. Yes, sir.

> *“Q.*And it’s the miners’ place or the timbermen to look after it ?

> *“A.*The miners’.

> *“Q.*And the barmen look after it ?

> *“A.*Yes, sir.

> “Q. And you, as shift boss, are supposed to see that the place where the trammers are — to make it safe ?

> “A. Yes, sir; if I see it, I tend to it.

> *“Q.*And, if the danger is apparent, it’s your duty to look after it, and see that it is safe before you put them to work there ?

> “A. Yes, sir.

> *292
>       *UQ.*And, if you determine it is safe after your inspection, they are supposed to work there ?

> *“A.*I ain’t supposed to tell them to go there.

> *“Q.*But, according to the rules of the mine, they are supposed to go there or go up ?

> *“A.*Not in all cases. If a man objects going there, we give him other places. When we give them an instruction to go there or go up, that means just what it says.

> ‘ ‘ I don’t see why trammers are not men that are able, ordinarily, to judge the character of a hanging wall. They are at liberty to do that kind of work if they want to. Their duty is to tram rock. We have men for the purpose of looking after the hanging. We give them tools suitable for examining the hanging. Those tools are long steel bars, and a sort of crowbar to pinch it down, put in the crevice and pinch it down. The miners usually blast it. The only way for the trammers to work safe in the Quincy mine is to pinch down the loose rock. If there is any loose there, it has to be taken down. If it’s necessary, we timber up the stopes along the open stopes. The hanging is not kept clear in all places by pinching it down. It depends how bad it is. If the hanging is very bad, we put in timber. If that timber is put in there, it’s put in there for the purpose of keeping the hanging safe; and for no other purpose. We wouldn’t put it there for any other purpose principally. The men that do that work of timbering up such a place are called timbermen. Their principal work is keeping places safe. I deny absolutely having that conversation.”

There is no complaint made about the charge of the court if the case was to be allowed to go to the jury. We think it clear that instead of the case being within the line of cases represented by *Petaja*v. *Mining Co., supra,*it is within the other line of cases represented by *Danula*v. *Mining Co.,*166 Mich. 350 (130 N. W. 604), and the many cases cited therein. See, also, *Highland Boy Gold Mining Co.*v. *Pouch,*124 Fed. 148, 61 C. C. A. 41; *Coal & Manufacturing Co.*v. *Kaiser,*229 Ill. 32 (82 N. E. 239, 120 Am. St. Rep. 233).

Judgment is affirmed.

Steers, Brooke, Stone, and Ostrander, JJ., concurred.