The Alaska citizen., 1910-09-05

. ing from the drifts into and dOwT i the tunnel and up the shaft. and l that as soon as one point in the roof 1 became higher than the other points l in the drift tunnel. the steam would | naturally rise 10 this high place and | constantly eat out and into the | frozen roof of sand and gravel: that | as a result of this fact. this hole | under which the plaintiff and Ander | son were obliged 10 work. was dan | eerous and well known to defend l ants. and by reason of their negli. | genCe in either failing to pick down ! the loose sand and gravel. thus thaw-
 ed by the escaping steam. or by | failing to put up square sets of tim. l berS alongside the timbcrs of the tun- nel. the defendants were negligent | in their duty 10 plaintiff. and such negligence resulted in his injury | through no carelessness or failure
 of duty to protect himself on his 1 part.
 | The defendants on the other hand | cOntcnded that the roof at no time l up until and after the accident to | the plaintiff. either in the drift or 1 along the side of the tunnel in the ! drift, was more than from six to 1 eight feet in height. and that at | any and all times it was the duty l of the plaintitf and his co-workcrs | to keep all loose sand and gravel in | the roof of the drifts where they were working. picked down to the | frozen ground; and that il was not 1 the custom of miners in the dis | triCt, nor was il their duty in this mine, to place square sets or tim i bering thereon in the drifts adjoining | the tunnel for the protection of the men. that il was not practical. That | The erection of the same along the l face of the drift would be dangerous. rather than providing safety for the 1 men: but that it was the duty and l custom of the men working in the | drifts. as was this plaintiff and his ! CO-Workers to keep the thaWed gray el and sand and loose rocks in the drifts constantly picked down; that l tt was the only practical way for | the men to insure their safety. That I the conditions above their heads in such mining and drifting are con stantly changing. by reason of the | action of the steam which escapes | from the points and from the connec- | tons used in conveying the steam i 10 the points. as well as the under mining of the face by the men ill | taking out the thaWS, and that usu- ally the roof of the thaw previously taken out is thus thaWed by this escaping steam, to a thickness vary ing from a few inches to a foot or IS inches
 That the men, before beginning to
 take out the thaw, should dig down all this thaWed loose ground. gravel and stone. and make the place where they are working safe from such ac- cidents as happened the plaintiff This action was tried to the Court. | the attorneys for the respective par | ties expressly waiying jury.
 Louis K. Pratt, appearing for the plaintiff.
 Heilig X Roden, appearing for the defendants.
 Overfield, District Judge: The evi- dence in this is conflicting on Div otal points, around which the Court must base it's opinion. and by reason of the fact that the Court consented to hear the action without the aid | of jury, it is but natural that the evidence and law should be consid- cred ill the same order as would have been done with d jury in attendance. The first point in which the plain tiff and many of the witnesses diff
 fer in a marked degree in their tes-
 timOny. is, as to the height of the roof of the drift from which the
 mass of earth and gravel fell. caus-
 ing his alleged injuries. He is pos itive that il was not less than II
 or 15 feet In this contention he is supported by the testimony of
 his brother. who worked as a point
 man in the same mine. working
 nights, as well as that of the tes-
 timony of one Anderson, his part
 ner, who was shoveling into the
 same car with the plaintiff on the
 morning of the accident.
 Some of these witnesses con
 tend that the roof was too high al
 that point for them even to stand on
 the cars and pick down the loose
 dirt and gravel from it.
 Opposed to this testimony, and
 positive in it's terms, is that of
 Stone and Brandt, the defendants,
 Weitzel, their foreman, and one
 Krim. co-laborer with the plaintiff,
 who was working on the same face
 of the drift with the plaintiff and
 Anderson on the morning of the ac-
 cident. They swear positively that
 the roof in question was not, at the
 extreme. over eight feet, if not
 less, and if so. within reasonable
 reach for the miners to pick it
 down.
 l am convinced that the testi-
 mony, by fair preponderance,
 shows the drift roof alongside of the
 tunnel at the place where the in
 jury took place, was not 12 or
 15 feet in height, as contended by
 the plaintiff and his counsel, but
 was between and feet.
 The next question to arise is:
 What was the duty of the defend
 ant, under the circumstances, with
 respect to providing a safe place in
 which his men should work? The
 general rule of law, I take it, is applicable. at least in modified
 form. that a master is bound to provide. as an ordinarily prudent
 man, a reasonably safe place, and what is a reasonably safe place de bends in each instance upon sur
 rounding conditions.
 It was the duty of the defend
 of the drifts in as safe condition
 as he could consistently, with a
 reasonable and practical mode of