Habishaw v. Standard Quicksilver Co.

[431]

HENSHAW, J.

Plaintiffs, who are the surviving wife and children of Thomas Habishaw, deceased, sued the defendant to recover damages for the death of Thomas Habishaw, the husband and father, alleging that he was killed in defendant’s mine through the negligence of the defendant and its servants and employees.

The negligence pleaded consisted of the failure by the defendant to provide a flooring or lagging over Habishaw’s head, so as to prevent rock or other material which might become loosened in the operations of the mine from falling upon him. For the want of such flooring or lagging a rock of large size fell a distance of about twelve feet, and in its fall struck Habishaw and caused his death. The verdict of the jury was for plaintiff, and from the judgment which followed and from the order denying its motion for a new trial defendant appeals.

The contention of appellant is that the deceased, an experienced miner, was either guilty of contributory negligence in working where and as he did, knowing of the absence of lagging or flooring, or that in so working, with knowledge of the conditions and situation of the mine, the risks he ran became known to him; that he assumed them, and that, therefore, the defendant is not liable. Appellant urges that Mr. Habishaw, being provided with lights by which he could plainly see for a distance of from fifteen to thirty feet, would have known whether or not such lagging or flooring was necessary or proper for his protection; and that, having worked in that particular place for a day and a half immediately preceding the injury, by the ordinary use of his senses, under such circumstances, he must have known, or should have known, that there was no covering or flooring or lagging at a distance of about ■one foot over his head (the seventh floor), or at a distance of about seven or eight feet over bis head (the eighth floor), covering the set immediately over where h'e was working; and that, knowing such facts and the probable results, it was contributory negligence on his part to continue to work in that place without such flooring or lagging, if the same was reasonably necessary for his protection from injury. It is insisted by the appellant that the evidence upon these matters is uncontradieted, and that the question becomes, therefore, one of law. By the