The Alaska citizen., 1910-09-05
IMPORTANT MINING
 DECISION RENDERED
Continued from Page .


 years. Talbert pointed to a place on the foot wall a little lower than and a little to one side of this gouge. a place that was neither in nor under it. Finalyson then clear ed away place and sat down with his back and shoulder against this chunk and commenced to drill in the foot wall q place for the notch Ar ter he had drilled away on this wall for half an hour. the mass of gOuEe fell down and injured him A directed verdict in favor of the de feudant company brought the case before the Circuit Court of Appeals.
 Tt is the general rule that it is the duty of the master to exercise ordinary care to provide a reason ably safe place in which the ser want may perform his services; Railway Co. vs. Jarvi. 53 Fed. 60 But this rule cannot be justly ap- piled to cases in which the very work the servants are employed to do consists in making q dangerous place safe, or in constantly chang ing the character of the place for safety as the work progresses. The duty of the master does not extend To keeping such a place safe at every moment of time as the work progresses The servant assumes the ordinary risks and dangers of his employment that are known to him. and those that might be known To him by the exercise of ordinary care and foresight When he en- gages in the work of making a place that 10
 safe. or in a work that in it's pro gress necessarily changes the char | acter for the safety of the place in which it is performed, as the work 1 progresses, the hazard of the dan | gerous place. and the increased haz- | ard of the place made dangerous ! by the work. are ordinary and | known dangers of such place. and l by his acceptance of the employ ment. the servant necessarily as sumes them"
 i The ease Of the Railway Co vs. | Jaryi, 53 Fed, G5. above quoted by 1 Judge SanbOrn was referred to and | disCussed; that case standing for 1 the proposition that the safe place l rule did apply under the facts i therein, Said Judge Sanborn. with 1 reference 10 the Jary case: In l that case a miner, who was work i ing about loo yards from the place 1 in which he was injured. went out 1 through the passageWay 10 get a 1 car, and was injured by the rock | which fell from the roof of the l stOpe as he was passing under it. Ii
 was necessary for him to pass un- l der the roof to get his cars. seven l times a day for cars, and to and i from his work. The Railway Co. i knew that this roof was composed of dangerous rock. and that it was | a roof that might possibly fall and l needed watching. The only way such a roof could be properly test ed was by sounding it with a cane or i pick. and there was no evidence
 that this roof had been so tested
 for weeks Under this state of facts
 this Court held that there was some evidence of negligence on the part
 of the company, and applied the rule ot safe place to this case
 But the roof which fell in that
 case had long been completed by the railway company, and was fur
 nished to Jarvi as safe cover for a way in which his duties required him to pass. He had no work to per,
 form ill making il safe or in l changing the character for the safe ty in which the company furnished and maintained II. On the other hand, in the case al bar. Austin and Finalyson were engaged in re
 moving ore from the base of the stOpe and in making the place from | which il was removed safe for | subsequent work. The very tim
 bering on which Finalyson was en- gagged was the work of making a ! place safe that was necessarily
 made dangerous by the progress of | the work, and which it had em-
 ployed Finalyson himself and his
 felloW-serVants to make safe In other words, the complaint is That the master was negligent because it did not render unnecessary the work
 il employed the servant to do. be fore he commenced to do it. The distinction between this and the Jaryi case is marked and clear
 and in our opinion it brings il squarely within the other class of cases to which We have just re 1 ferred."
 Counsel for the plaintiff in this | case contends that the rule of the assumption of the risk by the ser want. as laid down in the Finaly- son case, does not apply here, for | the reason, as he suggested, by reference to two decisions in tun- nel cases, in coal and hard rock mining. that the roof of the pre- viOus thaw should be compared to | the roof in a timbered tunnel; that after the thaw had been taken out, l the defendants were under as much | obligation to make that roof safe l for the miners to work under, as is | the obligation of operators to tim | Der and make safe the completed parts of the tunnel in process of 1 construction. To this contention I cannot agree, for the reason that | the very nature of the mining, the | scarcity and character of timbers used, and the more reasonable rule | Of picking down the roof, and the | still more practical and safe rule of having the miners held respon- | sible for the roof, of the height here in question, over their heads in worked out drift. This leads me to the conclusion that the rule | in the Finalyson case should here | be applied. Under ordinary circum- l stances, such a duty is not placed 1 upon the operator of drift mining in Alaska, in either providing the | timber or picking down the roof