The Alaska citizen., 1910-09-05

gravel falling on them. must de.
 pend upon the varying conditions and circumstances; depth of gravel
 and it's character: the time of the season the work is being carried on: the amount of cool air. and
 the number of air shafts connected with the underground workings etc.
 There is no doubt but that under
 such conditions and mode of min. ing as was being carried on by | the defendants at the time of the
 accident to the plaintiff, the part. nerS were in duty bound 10 have some one whose duty it would be to direct, and command. if neCes. sary. that precautions be taken for the safety of the labOrers by way of inspection~ watChfulness and care.
 There is no allegation nor evi. dcnCc that WeitZel. the foreman.
 was incompetent. but that he was in charge of the underground min ing. with full power 10 carry on the work there. By reason of his employment. his duties would have made it compulsory upon him to
 have erected timbers above the spot
 of the accident had they been nee
 eSsary, or to have dug down the
 loose sand and gravel. or have de
 legated such powers and duties to
 others. and a failure to have done
 so would have been actionable neg
 ligence. provided the plaintiff was
 free from fault.
 There is evidence, however, that
 Weitzel, the foreman usually in spected the roof of the drifts and the works underground. and when
 he deemed if necessary for the purpose of his work. ordered square sets put in al the junction of the lateral tracks with those of the tun- uel tracks. sometimes setting up two timbcrs. across the top of which was placed a cap. and lag ging then placed thereon, the ends of which would rest on the cap and on top of the tagging of the tunnel. the distance of the square sets from the tunnel vary ing from three to six feet At other times, instead of having one end of the tagging resting on top of the tagging of the tunnel, an extra set of timbers would be plac- ed on this cap timber.
 The evidence showed that such timbcring was usually put up by the pointmcn during the night. be fore they began putting in a thaw in the face of the drift. The req son for the pOintmen doing this Il bod In time to bring the timbers from the worked out part of the tunnel and drifts. usually taking the timbers from that part of the tunnel which was no longer in use, al least when ever the sl0ughing of the roof and the siabbing down of the frozen parts of the roof had not destroyed the timbGrs, or so deeply and heav- fly covered them up that they might be removed readily and secured for the use intended The pointmen would them erect such timbcrs. and afterwards as was another of their duties ill this mine, lay the lateral track as close to the face of the new thaw as they could convenient ly dc. usually two or three feet.
 By following this custom, the tim bers erected with the lag ging thereon would catch the loose thawed rock and gravel, and pre- vent the necessity of hoisting it to the surface. Considerable thaWing of the roof would necessarily fol low from the escaping steam from the thaw they were then engaged in The evidence of both Weitzel and the plaintiffs brother who as sisted with the points in thawing the mine. was that at times the pontment could and did use their own judgment as to when they should put up square sets along the face of the drifts nearest the tun- mel and over the lateral tracks, but that as a rule the foreman told them to put up such timbers.
 A fair preponderance of the eVi- dence does not convince the Court. from all the evidence, that it was either desirable or practicable, for the protection of his miners. for the defendant to place timbers, GOV cred with tagging, in the drifts where the height of the roof did not exceed that in the place i'll question.
 This conclusion is reached from the testimony of the witnesses who either worked in the same mine or were acquainted with the mode of mining employed in this mine, and who knew the conditions existing in this mine from personal obserVa- ton. and who testified that the erection of such timbers, under Sllch circumstances WOuld prove of little value for the protection of the men. in the case of a quanti- ty of dirt falling down, as alleged by the plaintiff to have fallen, for the reason that the timbers con tended for by the plaintiff were not erected in such a manner as to be braced, and quantity of dirt fall ing upon them would either break the tagging or topple the entire structure over; and the additional reason that when timbers were thus erected the miners would depend upon them. rather than looking to the actual condition of the roof above them, and digging the same down, as is the usual and practical custom in such mining; but also for the additional reason that such square sets are never used in such underground drift mining, for the protection of the men, but, if erect ed at all, are for the purpose of protecting the lateral rails and the turn sheet, which is situate at the junction of the track in the tun- drift
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