Kevern v. Providence Gold & Silver Mining Co.

McKinstry, J. The court below granted a nonsuit. The evidence showed that the shaft in which the plaintiff was injured had been • divided by a row of posts extending down the center at a distance of about four feet from each other, firmly fixed in the roof and base-pieces; that in the space to the right of the row of posts, looking down, there was a laddér-way to be used by the men working in the mine, consisting of a row of steps about" fourteen inches wide and close to the posts; that in the other compartment of the shaft there was a double-rail car-track. The plaintiff when injured was ascending the steps with a lighted candle. When plaintiff was injured, three of the posts mentioned were wanting, or not in place, one of them absent near the top of [393]the shaft; thus leaving there a space of over eight feet between two of the posts.

Wilcox, the only witness whose testimony is set forth in the transcript, testified that, having been directed by Truan, shift boss, about two hours previously to go up and throw a timber down the shaft, he cast into the shaft a log twelve feet long and eight inches in diameter at the smaller end. The witness said: “He told me to throw it down, —that is all I know about it.....The mouth of the shaft was under a building. I packed the timber to the mouth of the shaft on my back. I got it into the shaft by throwing it in. I threw it from my shoulder. I took no means to see if anybody was coming up the shaft before I threw it in. If I had looked in the shaft, and there was a man there, I should certainly have seen him.....If I had known there was a man in the shaft, I would have waited until he came up.” The witness added that he had no time to look into the shaft; he had as much as he could do to get rid of what he had on his back; that he could have laid the timber down and run it into the shaft; that there was no danger in getting timber down the shaft if the person sending it down looked to see if there was anybody in the shaft. And he said: “I threw it into the shaft; I intended for it to go down the track-way, but it went between the center posts into the other shaft. .... It started in the track-way.....I think it struck, as near as I can tell, the end of the post; went right across and struck the end of the post, and that turned it right around down the shaft. .... I went in this way [showing]; I wasn’t facing square, and I threw myself half around, and threw the timber in..... The shaft was dipping east, my face was south.” In answer to the question, “ When you dumped it off, you dumped it in such a way that it struck the post ? ” the witness said: “Yes; went right between the center posts, and struck the end posts.” Question: ?* Now, if you had