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(Circuit Court of Appeals, Ninth Circuit. October 19, 1904.)

No. 1,049.


The testimony of a number of witnesses that the timbering in a copper mine did not reach to the roof, or back of the stope, by several feet, and that for several hours before the caving in of the roof, by which plaintiff's intestate, working in the mine, was killed, pieces of rock kept falling from the roof upon and through the timbers, was sufficient to authorize the submission to the jury of the question of the negligence of the defendant mining company in failing to keep the mine properly timbered. 2. INSTRUCTIONS-FORM-REFUSAL OF REQUESTS.

The court is not required to give instructions in the language used by counsel, but its duty is fully discharged if its charge embraces all of the principles of law arising in the case in its own language. 8. SAME.

It is the duty of the court to simplify its charge to the jury, and the practice of taking the instructions as requested by the respective parties, and from them formulating a general charge embracing all the matters of law arising upon the pleadings and evidence, is always to be commended, because in this way the points in issue may be sufficiently declared and clearly presented to the jury, without unnecessary repetition. 4. SAME EXCEPTIONS-SUFFICIENCY AND TIME FOR TAKING.

In the federal courts, exceptions to the charge are of no avail unless the record shows that they were taken and the points of exception designated while the jury were at the bar; and it is improper practice to permit formal exceptions to be then noted, and the specification of objection to be supplied in the record later; the object of the rule being that the attention of the trial court shall be called to the precise point to which exception is taken while it may be remedied.


An inexperienced person going to work in a mine assumes only the ordinary risks incident to his employment, and, where he has nothing


15. Assumption of risks incident to employment, see note to Chesapeake & O. R. Co. v. Hennessey, 38 C. C. A. 314.

133 F.-1

to do with the timbering of the mine, he has the right to assume that it is properly done by his employer, unless advised to the contrary, or the danger is obvious.


A judgment should not be reversed because of inadvertent expressions in the charge, to which the attention of the trial court was not called, and which evidently did not affect the verdict.

7. MASTER AND SERVANT-ACTION FOR KILLING OF SERVANT-INSTRUCTIONS. The charge of the court considered, in an action against a mine owner to recover for the death of an employé killed by the caving of the mine, and held, taken as a whole, and construed together, to state the law of the case fully and correctly.


On an issue as to defendant's negligence in failing to properly timber a mine, by reason of which, as alleged, there was a cave, and plaintiff's intestate was killed, where defendant had shown by an expert witness that a cave might occur in a mine properly timbered, it was not error to exclude testimony as to particular causes which might produce it, when there was no evidence that any such cause existed at the mine in question.


Where a disinterested witness had testified to the defective timbering of a mine in which he was a workman, at the place where a cave occurred which killed plaintiff's intestate, the court properly excluded a question on cross-examination as to whether he suggested to the foreman that the place was dangerous, as a matter which could not bind the plaintiff, and did not tend to impeach the witness.

In Error to the Circuit Court of the United States for the Northern District of California.

For former opinion, see 123 Fed. 61.

This is a suit to recover damages for the death of John Van Buren, occasioned by the alleged negligence of the plaintiff in error. A brief outline of the general character of some of the facts of this case will be sufficient to illustrate the points raised by the assignments of error:

The defendants in error are the sole heirs at law of John Van Buren, deceased, to wit, his widow and three children. About February 10, 1900, John Van Buren went to Iron Mountain, in Shasta county, and sought employment with the Mountain Copper Company, the plaintiff in error herein. He had no experience as a miner, but was a bridge carpenter. He was engaged by the corporation as a carpenter, but was first put to work in the rock quarry. After he had worked there a few days he was ordered by the foreman in charge of the work to go to work as a mucker in the mine. (A mucker is one who, after the ore or muck has been mined by the miners, shovels it into cars, and then moves it out to the surface of the mine.) He first declined to go to work in the mine, on account of his inexperience in such work. His foreman told him he would have to go to work in the mine, or quit work. He continued working in the mine as a mucker.

The mine of the Mountain Copper Company is not a vein or ledge of mineral-bearing rock or ore in place, but is a large, lenticular mass of ore, and is mined by drifting or tunneling into the ore body from the mountain side, and stoping out the ore in large chambers or sections. The superintendent of the plaintiff in error at the time of the death of Van Buren testified that: "The shape of the deposit I can liken to the hull of a ship, with the prow pointing to the south, and the west side of the mass flatter or at less pitch than the east side."

On February 28, 1900, about 12 o'clock p. m., or early in the morning of March 1st, a cave occurred in the mine. Several workmen, including Van Buren, were killed. Some idea of the extent of this cave is gleaned from the testimony of witnesses that it took from 12 to 14 days to recover the bodies. The cave occurred in what was known as stope 4 in the Copper level. At the

time of this accident the mine consisted of three opened-up levels, known as the Fielding, the Copper, and the Peck levels. The Fielding was the lowest level of the three; the next level was the Copper level; above that, the Peck level. The distance between the top of the Fielding level and the bottom of the Peck level was 38 feet, and the distance between the top of the Copper level and the bottom of the Peck level was 14 feet, at the place where the accident occurred.

Counsel for the plaintiff in error, in his brief, epitomizes the method of working the mine, as shown by the testimony of its witnesses, as follows: "The system under which the mine of plaintiff in error was worked was peculiar. Going in upon any given level, a drift was run into the ore body; and, working forward from this drift as a base, the ore was stoped out along the side of the drift. The drift was timbered up to the roof, bracing the roof, and then, as the miners worked forward, stoping out the ore, the timbering was advanced towards the face of the stope; the ground back of the point at which the ore was being extracted being filled in between the timbering with country rock; this filling in, together with the timbering, supporting the weight of the mountain above; room at all times being allowed for mining and mucking in the face of the stope. The timbering was in square sets. As the ore was stoped out these sets of timbers were advanced towards the face of the stope, and, whenever sufficient room was obtained, complete sets were put in. In the meantime timbers were projected from over the completed sets, resting upon the edge of such sets, and at the back end against the roof of the mine; extending out over the place where the miners were working, to protect them as much as possible from loose and falling rock."

The trial of the case before a jury resulted in a verdict in favor of the defendants in error for the sum of $6,750. The plaintiff in error seeks a review in this court, and makes 26 assignments of error, which may be classified under four different heads: (1) That the court erred in refusing to direct the jury to render a verdict in favor of the defendant; (2) that the court erred in refusing to give instructions (nine in number) requested by defendant's counsel; (3) that the court erred in instructing the jury (four instructions); (4) that the court erred in sustaining objections (eight in number) of plaintiff to certain questions asked witnesses by defendant.

Van Ness & Redman, for plaintiff in error.

Geo. O. Perry and Campbell, Metson & Campbell, for defendants in


Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

HAWLEY, District Judge (after making the foregoing statement). 1. Did the court err in refusing to instruct the jury to find for the defendant in the court below (plaintiff in error here)?

The arguments of counsel upon this point cluster around the proposition as to whether or not there is any evidence in the record showing or tending to show any negligence on the part of plaintiff in error; the contention of the defendants in error being that the evidence shows that the cave occurred by reason of the insufficient and negligent timbering of the mine by the plaintiff in error, and its failure to take the necessary precaution to protect the workmen therein, or to take any reasonable steps to secure their safety; the contention on the part of the plaintiff in error being that the mine was properly timbered; that the cave occurred, or might have occurred, by what is called by its witnesses a "side thrust," without any fault or negligence or want of reasonable care or precaution on its part to secure the safety of its employés. These contentions call for a brief review of the testimony offered by the respective parties upon this point. The defendants in er

ror introduced witnesses who testified, among other things, as follows: Nickerson testified that he worked in stope 4 of the Copper level with Van Buren and others; that he quit working before the accident because he was hit in the head with a rock that came out of the timbers from above; that he heard rocks fall on the lagging; that he could see the roof 25 or 30 feet from the bottom, 12 feet above the height of the timbers; that there was an open space above the timbers of about 12 feet.

Anderson testified that he worked in stope 4, at the point where the cave occurred, a few days before the accident; that "the last morning I worked there I observed rocks dropping from the roof or back of the stope. Some of the rocks struck the timbers and the lagging, and some of them fell out in the ground. The stope was not timbered up to the roof. * * * During the time I worked there, there was a considerable cave from the roof or back of the stope."

Fayle testified that he worked in the Copper level on February 28th, when Paul Edwards, the shift boss of the plaintiff in error, took the men out to wait until the ground quit settling. "Rocks fell there that night from the place where it had caved the day before where I was working. There must have been fifty or sixty cars in the cave of the day before. The timbermen that day put in a false set there to protect the muckers from the falling rock. * * * The Oats boys timbered in there that night. They were working there at the time of the accident, and were killed. * * I worked there until about 10 o'clock, when Paul Edwards, shift boss, called us out. It quit settling then, and Paul Edwards said he thought it was all right, and we all went back to work. I quit there then because I thought the place looked dangerous. I told Paul Edwards I didn't want any more of that, and he said I could go over and work in line 3. When I left, the Oats boys were starting in to lag up over the sets they had put in.'


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Pemberthy testified: That he was familiar with all branches of mining. That he understood timbering, stoping, and blasting; that he was working in the stope on the Copper level "at the time of the cave in which eight men were killed. * I was in sight of the men who were working in the stope, and who were afterwards killed. I could see them that night. I was working there at the time of the cave. The material that came down fell where I was working, after I got out." That he had helped to open all the stopes in question. That he had made an examination of the timbers on the night of the accident, and gave a minute description of how the timbering was done, and said there was lots of open ground above the timbers. That he was 6 feet 11⁄2 inches tall, "and could stand on top of those timbers without stooping, and my head did not touch the roof." That where the cave occurred the ground was broken and settling. That "the timbering that was in there, and on top of which and between which and the roof there was no cribbing, did not serve any purpose at all in holding up the roof. * * I saw rock falling the night of the accident, before the cave. A piece dropped down as big as my head every once in a while, and once in a while a car load would drop down. It would come down in broken pieces." During the course of his testimony the following questions and answers appear:

"Q. by Mr. Perry: From what you have seen and know of the mine at the time the accident occurred, on the morning of the 1st of March, 1900, would you say that that portion of stope 4 where these men were working was in a safe condition for men to be put to work in? A. I would testify it was not. Q. And why would you say it was not? A. The fact that the timbers- The back was not properly caught up."

And at another. point, with reference to the falling of the cave:

"Mr. Perry: Q. What I want to know, Mr. Pemberthy, is, did it come down suddenly, or was there a gradual cracking and popping? A. It came down suddenly in that portion of the stope, and then it started to cave both ways. Q. The center of the stope, so far as you could judge, caved first? A. Yes, sir. Q. And it came down with a sudden crash? A. Yes, sir. Q. And then the cave extended? A. Both ways. Q. So far as you could tell? A. Yes, sir."

Lundwick testified that he was timbering at the place where the accident occurred the day before and the night of the accident until a late hour; he was on top of the timbers, and could see it was open above; that the timbers did not reach up so as to support the roof or back of the stope; that many places were not cribbed; that a cave occurred the evening before the accident which broke down the staging upon which they were working putting in timbers; that a man working with him who stood on top of the timbers could not reach the back of the stope without extending the six-foot staff or pole. He gave in detail the manner in which the timbering was done, and upon his crossexamination by Mr. Van Ness:

"Q. Do you know to what extent along the line of that stope cribbing had been put in above the timbering, say between line 4 and line 5? Do you know to what extent along the timbering had been cribbed up to the roof? A. I know some places it was not. Q. In how many places was it not cribbed? A. I do not know. Q. About how many? A. A good many. I do not think it was more than half cribbed. Q. You would say, as a matter of fact, that about half the timbering was cribbed, and about half of it was not cribbed? A. Well, something like that, and even then some of the cribbing was not wedged up tight at all."

Prater testified that there was from 10 to 12 feet of open space above the timbers; that the timbers did not support the roof; that he did not think it was a safe place, and his brother-in-law, Paul Edwards, who was the shift boss there, changed him, on account of the dangerous condition, to work in line 3.

Roberts testified that he was in the stope where the accident occurred between the hours of 9 and 10 o'clock on the night of the accident; that he noticed the ground was caving away all of the time and falling; that rock filling from the Peck level came down into the Copper level at the time of the cave.

Davis testified that Van Buren declined to go to work in the mine on account of inexperience as a miner; that the shift boss, Woods, told him he would have to go to work in the mine or quit his job; that on the night of the accident the shift boss, Paul Edwards, warned him (Davis) not to go through that stope, because it was not safe; that the timbering did not reach up to the roof; and that the timbers in that place were set on loose muck.

The witnesses on behalf of the plaintiff in error, especially the superintendent, the assistant superintendent, the foreman, assistant foreman, and head timberman, testified in detail as to how the work was

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