#### Anna Swenson, as Adm’rx, etc., Pl’ff and Resp’t, *v.*Mahopac Iron Ore Company, Def’t and App’lt.

*(New York Common Pleas,*

*General Term,*

*Filed June 3, 1889.)*

1. Negligence—Evidence—When question of defendant’s negligence SHOULD BE SUBMITTED TO JURY.

Plaintiffs intestate was killed while employed in the defendant’s mines, by the falling of a rock upon him from the roof of a subterranean chamber. There was evidence that the roof of the chamber had been unsafe for several months; that it was usual in such cases to put in timber supports, technically called “ stubs,” to hold up the roof; that there were only two of these stulls in this chamber which, for its size, required eight or ten to make it safe; and that the defendant had knowledge of the condition of the roof. There was also evidence contradicting this in every material point *Held,*that there was sufficient evidence, which made it the duty of the trial court to submit the question of the defendant’s negligence to the jury.

2. Same—Master and servant—Duty of employer.

It is the duty of the employer to furnish a safe and proper place for his employee in which to prosecute his work; to adopt all reasonable means

*44and precautions for his safety, and to employ skillful and competent workmen to direct his labor and to assist in the performance of his work. This duty of the employer cannot be delegated by him to any servant so as to exonerate him from responsibility to another servant who has been injured by its non-performance.

3. Same—Risks assumed by employees—Duty of employer

The risks which an employee assumes are those only which occur after the due performance by the employer of the duties the law enjoins upon him. Where the employee is injured while engaged in the duties oí his employment, it is proper to inquire whether the employer did everything which, in the exercise of reasonable and ordinary care and prudence he ought to have done, or whether he omitted any precaution which a prudent man would have taken.

*4.*Same—When employee guilty *of*contributory negligence.

It is the duty of the employee to be watchful for his own protection. If there is danger which is obvious to ordinary observation, which another person could see by looking, then he is chargeable with contributory negligence if he sees it, or ought to have seen it, and notwithstanding that, continues his work there, and is injured.

6. Same.

If the employee is injured whilst *in*a part of the mines on his own volition, where he was not required to be to perform the work in hand, or if when he had finished the work to be done, he wandered into a dangerous part of the mine for his own curiosity or amusement, and was then injured, he is chargeable with contributory negligence, and cannot recover.

Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury, and also from an order denying a motion for a new trial.

*J. Ed. Swanstrom,*for resp’t; *William C. Holbrook, for*app’lt.

Allen, J.

The action was brought by the plaintiff, as administratrix of Anders Swenson, to recover damages occasioned by the death of said Swenson through the alleged negligence of the defendant. The only questions raised by the exceptions taken by the defendant in the case, are whether the evidence as to the negligence of the defendant was sufficient to take the case to the jury, and whether a question of fact was presented to the jury by the evidence, as to the contributory negligence of the plaintiff.

The defendant is a mining corporation, owning and operating an iron mine in Putnam county, in the state of New York, near Lake Mahopac. The plaintiff’s intestate, at the time of the accident, was in the employment of the defendant as a workman in its mines. On the morning of the 11th of December, 1886, the deceased and one Charles Ericksen were sent into shaft No. 1, by Mr. Lewald, the foreman of the mine, to fix the track used in hoisting ore. They repaired the track and were waiting to have a skip hoisted to see if the track was all right. Ericksen testified: “We had to wait there until the skip went over once or *45twice to see if the track was done.” While thus engaged the defendant was killed by a large rock which fell from the roof of the mine. The accident occurred in a subterranean chamber, which formed a part of shaft No. 1; this chamber was from fifteen to twenty feet wide, and thirty feet long. Shaft No. 1 was a sloping tunnel which opened into the chamber and continued beyond it. There was a stull, which had been erected by the company in the chamber, and the deceased and Ericksen seated themselves between this stull and the pump, and close to the pump, to see how the skip would run over the track.

The general principles of law applicable to this case—to wit, that it was the duty of the defendant to furnish a safe •and ‘proper place for its servant in which to prosecute his work, to adopt all reasonable means and precautions for his safety, and to employ skillful and competent workmen to direct his labor and assist in the performance of his work; and that this duty on defendant’s part could not be delegated by him to any servant, so as to exonerate him from responsibility to another servant who has been injured by its non-performance, and that the risks of the service which, a servant assumes on entering the employment of a master, are those only which occur after the due performance of the duties which the law enjoins upon him—are not in dispute. In *Pantzar*v. *Tilly Foster Mining Co.,*99 N. Y., 375, it is said to be the rule that it is proper to inquire in a case of this class whether the master did everything which, in the exercise of reasonable and ordinary care and prudence, he ought to have done. Did he omit any precautions which a prudent and careful, man would take, or ought to have taken? It becomes necessary, therefore, to examine the testimony to ascertain whether there was any evidence before the jury upon which it might find that the defendant failed in its duty of reasonable and ordinary care in examining and inspecting this part of the mine, and in omitting to take the ordinary and usual precautions to prevent accidents to workmen.

It is claimed on the part of the defendant that work in the chamber, where the accident happened, had been abandoned, and therefore it was relieved of its duty to make as frequent inspection and tests to prevent the fall of rock at that point as where work was being done. As to whether mining operations .were carried on in that chamber at the time of the accident, there seems to be a conflict of evidence. Case, one of the defendant’s witnesses, testifies that mining operations were being carried on there at the time of the accident. Townsend, another witness, testifies to the same effect; while others, on the part of the defendant, have sworn that no mining operations were going on there at the time. Ericksen, the plaintiff’s witness, says: *“*It was a place where we worked and stopped, and worked again and *46stopped.” As to the condition of the roof from which the stone fell, the witness, Ericksen testified:

“This roof was loose and cracked; I don’t know how long it was in that condition before the accident; that was. there a long time because I could not guage the time; it was-three months anyway.” Again he says: “Iknow it to be the fact that the roof where the accident occurred was-cracked and loose and had been in that condition for a long time. I came down there one time when Tom Roach was-working and I looked out and says, ‘ Mr. Roach, why don’t you have this roof fixed?’ He says, ‘ I don’t have anything to do with that.’ This was for that place where that accident occurred, where that was loose.”

“Q. What kind of a crack was this in the roof? A. Well, there was this water where the water comes through-the crack, the red stuff; you can see cracks all over, this, light stuff all over the roof.”

Another witness, Andersen, was asked how much of the' roof was cracked, and he answered, “ So far as I examined it, it was cracked all over the place where Swenson was; killed.” Wilson, another witness, testified that he worked there five days before Swenson was killed, and when asked to state the condition of the roof of the mine at that time, he said it was a bad piece of ground and that he didn’t work there afterward. Ericksen also testified that after he-observed this condition of the roof, before the accident, he told Mr. Roach, the contractor, and also his hired man, and he saw Mr. Case, the foreman, and Mr. Lewald, who was. the head mine boss at the point where the cracks were. The witness Nye, an owner of mines, and who has been engaged in the mining business as superintendent and otherwise since 1863, was examined as an expert, and was. asked :

“ Q. Where there is loose rock in the roof, and cracks, appear in the roof of a mine, what does that indicate from your experience ? A. Danger ; danger to human life, and necessity of timbering; danger from the falling of the loose-rock in the roof.”

As indicating that the defendant had knowledge of the-condition of the roof, it was shown that they commenced, about two or three months before the accident, to put in timber supports, which are called in mining, stulls. Two timbers only appear to have been put in before the accident, and Ericksen swears that these timbers were three and a half to four feet apart at one end and a little wider at the other, and there was about ten feet of the roof that was-cracked and broken that was not covered by these two timbers. The witness Nye, when asked of what use two timbers would be in a chamber thirty feet long and fifteen to twenty feet wide, with its roof cracked, covering a space of ten to fifteen feet, answered, “Very small use, very limited, to the extent only of the ground covered.”

*47There is evidence that eight to ten timbers would be necessary to put in the chamber to cover the area oí cracked roof, assuming the area of cracked and loose roof to be as sworn to by plaintiff’s witnesses. As to the examination and inspection of this chamber, Roach testifies than it was a part of his contract to inspect the mine, and see that everything was correct, and says: “Between August and December I did not inspect the roof of that chamber.” It also appears from the testimony of Case, who had charge of the defendant’s mining operations, that he made some soundings in the fall of 1886, but none at that point where the accident happened; that he sounded that part in August, and has. no recollection of having sounded it between August and December. The defendant’s witnesses contradicted the plaintiff’s evidence in regard to this condition of the roof of the chamber, and gave proof on the subject of the precautions taken by the defendant to prevent accidents in the chamber. Townsend, the defendant’s timberman, swore that he put up the stull in question, and took the usual precautions, and that the ground in that chamber was not dangerous. Another witness testified that the stull was constructed in the usual way, and that he never noticed anything particular about the character of the roof. Roach, a miner, said that he excavated the chamber; that the hanging walls were perfectly solid, the only loose rock being on the roof over the stull; that he was never in a safer mine, and that it was not necessary to put in more timbers than were put in to protect the roof. Another witness examined the roof immediately after the accident, and found it solid, save the. hole where the rock came from, that struck the deceased. The foreman of the mine testified that he considered the chamber safe, although there might have been some small water seams or fissures; that there was nothing of an unsafe condition at the point where the accident occurred, on the hanging wall side; that it was sounded in September. •Case, the superintendent, swore that he considered the chamber sound and safe; that he examined the roof to see if it was apparently secure; that he saw no necessity of putting in any more timbers.

From an examination of this evidence, it plainly appears that it is contradictory upon every important fact bearing upon the defendant’s negligence. The evidence as to the condition of the roof at the time of the accident, the evidence as to the defendant’s knowledge of this condition, and as to the amount of examination and inspection of the mine, and as to the character and extent of the precautions adopted to protect the roof, was conflicting, and raised questions within the province of the jury to determine, and *48made it the duty of the court to submit the question of tho defendant’s negligence to the jury.

There was evidence upon which the jury might have found, and undoubtedly did find, that the roof was in a dangerous condition; that this condition was known to the defendant, or would have been known to it if it had exercised the duty of examination and inspection which the observance of reasonable care and prudence imposed upon it, and that “those precautions which would have prevented the injury were not adopted, although they were practicable and of easy and safe application.” No-error seems to have been committed on this branch of the case.

The proposition that the accident was due to. the negligence of a co-servant of the deceased, because the stull heretofore referred to was constructed by his co-servants, is-untenable. The accident was not owing to any defect in the construction of the stull, but to a fault in the roof of the mine outside of the part protected- by the stull.

There is evidence in the case bearing upon the question of contributory negligence on the part of the deceased. One witness swears that when he was ordered to go in shaft No. 1, Swenson said that he didn’t care about going in that place because it was very dangerous there. There-is evidence of several witnesses to the effect that the deceased was never in the chamber previous to the accident. On the other hand, other witnesses testify that he had been down there. It is also shown that if he had taken a different position than the one which he did take beside the-track, or bad gone under the stull, or had returned to the-surface without waiting for the hoisting of the skip, he would have avoided the accident. This evidence presented a question of fact for the jury, and it was submitted to them by the trial judge in a very clear manner in his charge, where he says: “They insist upon it that there was contributory negligence on the part of the plaintiff’s-intestate, because he was not working or was not standing at the track or in the track at the time the accident occurred, or was not engaged in fixing the track; that he had got through his work and was taking up his own time or was amusing himself to suit himself at the time; in other words, that he was not doing his work there. I leave that to you to say whether the place where the plaintiff went to- or what he was doing at the time was ordinarily in the line-of his duty as a workman at the time, or whether he had got through his duty and was engaged for himself and not for the defendant, or whether his deviation from the point-in which the structure was placed for protection was an act of negligence on his part. There is also evidence that *49he stated that this shaft was dangerous some time before. What he meant by that, whether he referred to the roof on this part of the timber, I think the evidence does not show, but you are entitled to take that into consideration, and by his means of knowledge. Of course a workman has got to look out for the place where he goes; if there is anything obvious to ordinary inspection that any other person could see by looking, then he is chargeable with negligence if he sees it, and, notwithstanding that, continues his work there. Was there a danger of such a character, and would the exercise of reasonable care on the-part of the workman have developed, when he went down there, that there was likely to be a fall of rock? If so, then he was negligent, and unless he is wholly free from blame, his administratrix cannot recover.”

The judgment and order should be affirmed, with costs.