
    SNARSKI v. MONTREAL MINING CO.
    Master and Servant — Mines and Mining — Explosives—Contributory Negligence.
    Evidence that plaintiff, a miner, in defendant’s employ, having upwards of eight years’ experience, exploded certain blasts which he had prepared and thereupon returned to the place where he had been working, when one of the charges which had not been discharged exploded and injured him, warranted the court in directing a verdict for defendant on the ground of contributory negligence.
    Error to Gogebic; Cooper, J.
    Submitted April 24, 1913.
    (Docket No. 39.)
    Decided September 30, 1913.
    Case by Joseph Snarski against the Montreal Mining Company for personal injuries. Judgment for defendant upon a directed verdict. Plaintiff brings erorr.
    Affirmed.
    
      Le Gendre & Driscoll, for appellant.
    
      Belmont Waples and William F. Shea, for appellee.
   Moore, J.

Plaintiff, 28 years of age, a miner by occupation, was injured while working for the defendant in its Montreal iron mine in Wisconsin; his right leg being broken near the knee. He brought this action to recover damages for his injuries. He was the only witness. At the close of his testimony the judge directed a verdict in favor of the defendant. The case is brought here by writ of error.

The important question is: Did the judge err in directing a verdict? The mine has 22 levels, about 100 feet apart. Shafts 3 and 4 are about 2,300 feet apart. In the twentieth level, about 1,500 feet east of shaft No. 3, was cross-cut No. 30. About 20 feet below the twentieth level and running parallel with it was a subway, which extended about 20 feet east of cross-cut No. 30, and also about 1,300 feet west of it. In the twentieth level was a heavy door about 20 feet east of cross-cut No. 30, and another one about 120 feet east of the cross-cut.. The twentieth level was about 12 feet wide and 9 feet high. The subway was 9 feet wide and 8 feet high. The men who worked below the twentieth level found their way down through a raise several hundred feet west of crosscut 30. This raise was commencing to cave, and plaintiff was at work making a new raise at cross-cut 30. This raise was in ore. The plaintiff was at work with Tony Snarski. At this time two miners by the name of Rosenberg were mining in the east end of the subway. The plaintiff had worked for defendant 9 years.

The foregoing is a general statement of the situation, and we may now consider the material parts of the testimony of plaintiff:

“They used explosives in the mine (dynamite), which they exploded by means of fuse and the light of a lamp. They bore holes, and after they load those holes up, then they are supposed to notify one another before they blast. The miners used explosives in mining the ore. They have got to blast to loosen the dirt. I have used explosives for about 7 years. I know what should be done in regard to warning people when one or more blasts are about to be set off. When one or more blasts are about to be set off at a certain place, after we have got our holes charged and ready to blast, we are supposed to notify the others that we are going to blast so many holes. I mean we would tell them that the blast was about to occur, and also the number of holes that were going to be blasted. This is the customary way of doing it. The purpose of giving such notice is that we would neither injure one another nor kill one another. The way such notice is usually and customarily given is that one of us stays there, and the other partner goes and notifies the rest that is around there that he is going to blast and there is so many holes. As to how far around the place where the blast is about to occur that the people are notified, sometimes we go as far as 300 or 400 feet, and sometimes as far as 500 feet. I used dynamite myself on the day I was hurt. I blasted five holes in making room for the set which I have mentioned. When I had the five holes charged, the shift boss told us to blast them before the other men that was on the west side came in. If the shift boss hadn’t ordered us to blast, we would have to wait until all of those men passed by. We blasted at the time we were ordered to by the shift boss. When we got orders to blast, we cut the fuse and hollered down. About 20 feet below there was a couple of men work- ' ing there. I hollered myself three times that we were going to blast. My partner went west on the twentieth level into the twenty-fourth cross-cut.
“Q. Where did you go?
“A. There is a door made there for the draft, and I went back of that door, on the east side of the door, which was made of 3-inch plank, and was about 6 inches thick, and was doubled. That was in the twentieth level.
“Q. What did you go over there for?
“A. I went there to see that nobody came back that way. The boss was in that direction; maybe he would turn back, or something like that.
“Q. What did you do after you got there on the east side of that door?
“A. I went there, and I was about 100 feet away from the door, and I waited for the blast. I stood there and I listened, and I heard five of them shots go off. I thought it was the five holes that I had. I asked the rest of the men around there, and they said they weren’t going to blast. I asked them at the noon hour. There was two pipes going down there. One of them was about from 60 to 100 feet long, and the other one was longer. I put in two laggings alongside of those pipes, so that there wouldn’t be any damage before we blasted. Those two men that I asked if they were going to blast were miners. * *
* After I heard those five blasts, I opened the door and went on the other side of the door, from the east to the west. I went there to shut off the wind — the air. The pipes had broke and the air was coming through. All these men were standing west, and the pipes was broke. My partner was there, too, and the people wanted to pass by. These people who wanted to pass by were standing in the twenty-fourth crosscut west of the place where the blast occurred.
“Q. What happened when you went to fix the pipes? '
“A. There was one more explosion from these five holes what I charged and one of the others.
“Q. Where did the other holes explode?
“A. That was 20 feet below me in the first sub. The miners set those off. I .didn’t have any notice or warning that any blasts were going to be set off there. I wouldn’t have gone in there to fix the pipes at that time, if I had had notice that there was going to be blasts down there. The air compressor, which is on the surface, brings that air in there that was in those pipes. * * * ”

Cross-examination (by Mr. Shea):

“I have been working in the mine a good many years — about 8 years; not much in Michigan, for this same company, the Montreal company. During those 8 years I have been a miner in the Montreal mine all of the time. In this Montreal, mine I have spoken about No. 3 shaft, and I say that the place at which I was at work on the morning I was hurt was about 1,500 feet east of shaft No. 3. * * * I set off those blasts at No. 30 cross-cut. That wasn’t a crosscut; it was a raise. * * * I helped to open up the raise all the way from the twenty-first level to the twentieth.
“Q. Were you blasting out the roof of that raise that morning?
“A. I was blasting the same as a cross-cut. I was blasting from the twentieth level towards the raise, on the hanging, north. The drift ran east and west, and I was opening up the cross-cut north. The raise was opened up as high as the twentieth level. It was opened up higher than the floor of the twentieth level above. The raise was about 4 feet from the north side of the twentieth level. We were cutting through that wall about 4 feet thick from the twentieth level to the raise, but the raise is through. * * *
“Q. What did you do during the night?
“A. First, when I got there, there was some dirt to be cleaned up, and we cleaned that up. Then we set our machine there and started to drill holes at the cross-cut. I .started to drill these holes about 11 o’clock, and finished them about 4 o’clock. There were five holes. Two holes were about 2% feet deep (that was all that was necessary), and the others were about 8% or 4 feet. * * *
“Q. What were you doing from 4 o’clock, when you finished drilling the holes, until the time that the shift boss told you to blast?
“A. I took the machine and carried it away, and all the tools that was there I brought them away from the place where we were working, getting ready for the blast. * * *
“Q. And two men were working there in the subway that night?
“A. Yes, sir; their names are Victor Rosenberg and Frank Rosenberg — two brothers. That sub was 20 feet below the twentieth level. * * *
“Q. You say it was customary before setting off a blast to give warning. Did those two men give any. warning that night that they were to set off a blast?
“A. No.
“Q. Why should they give any warning?
“A. Because they should give a warning so that one wouldn’t hurt the other through a blast, or kill one another. There would be danger anybody would be hurt or killed who was in a drift above or below; there is danger. * * *
“Q. How many minutes warning is given before a blast?
“A. At least 5 minutes before he lights the fuse. When the shift boss told us to set off the blast that morning, nobody was present except Tony Snarski and myself. I gave warning that I was going to set off the blast to the men down below in the sub. I gave them warning right where that hole was — crosscut 30. I halloed to them some 5 minutes before we lighted the fuse — fully 5 minutes. We men in the mine always did that.
“Q. All miners know that, even if the shift boss doesn’t tell them, do they not?
“A. Yes; they are supposed to. Miners have been doing that for the last 8 or 9 years, ever since I have worked in the Montreal mine.
' “Q. Anybody would know that it would be very dangerous to set off those blasts without giving warning to the men in that neighborhood?
“A. Yes, sir; everybody is supposed to notify one another. * * *
“Q. And they always did that in the Montreal mine as long as you worked there?
“A. I don’t know whether they all do it or not. So far as I know, and where I worked, they did. What the rest of them did, I couldn’t say. So far as I know, they always did it. But the men in the first sub didn’t do it that morning. They didn’t say nothing. They neglected their duty that morning.
“Q. If they had given you this warning, you would not have been hurt?
“A. No, sir; if I had had warning. I never talked to either of those men about the accident afterwards. The fuses that I used that morning were about 4 feet long. The five fuses were of the same length. I didn’t light them all at the same time. I couldn’t light them all at once, but I lit them one at a time.
“Q. How much time elapsed between the lighting of any two of the fuses ?
“A. Well, it don’t take no time at all. He just cuts his fuse first; he lights one and grabs the other and lights that; he lights one after the other.
“Q. If they were all lighted at the same time, would there be any danger?
“A. No; you couldn’t do it that way, no way, because you wouldn’t know how many blasts would go, if they all went at the same time. We intentionally let a little time elapse between the lighting of any two fuses; the difference would be about 5 minutes in five fuses.
“Q. Do you mean a minute between each two?
“A. Five minutes between them all.
“Q. So that about 5 minutes would elapse between the first blast and the last blast?
“A. No, sir.
“Q. Five minutes between each two shots?
“A. It takes about one minute between five; that is, to light the five. Then they go off in rapid succession, so we can count them easy, one after the other.
“Q. Do two go off at the same time sometimes?
“A. No, sir.
“Q. Is there some difference in the rapidity with which the fuses burn? Will one fuse burn faster than the others sometimes?
“A. We make the fuses all alike when we start, and then when I go to light them I cut them probably half an inch or an inch. I cut them into different lengths, so that when I light the longest one it gives it so much time on the last one, and when I light the last one they all correspond.
“Q. If the fuse is 4 feet in length, how much time elapses between the lighting of the fuse and the explosion?
“A. So far as I understand it, and what the orders are, each foot will last one minute; but they don’t go that.
“Q. You mean that the fuse burns faster than that?
“A. Yes; sometimes they do, a little bit faster than that. This morning, when we lighted the fuses, Tony Snarski went west and I went east back of the door. * * * I closed both doors as I passed east, and then I was about 150 feet from the cross-cut, and I stood there waiting for the explosions, and I counted five explosions. There was an air pipe in the drift, and the air was escaping from this pipe. * * * The pipe was broken at the cross-cut. I could tell the pipe was broken as I stood behind this door awaiting the explosions. It is easy telling, because the escape of the wind makes a great noise. I heard the sound. í{« ^ #
“Q. You didn’t know at what point in the air pipe the break occurred?
“A. I knew it was in the drift where I blasted. The pipe was right in the center of the main drift, above. After the five explosions, and when I got my light, I started back to find out where the pipe was broken. I went back to see what pipe busted, and in going back I was hurt. On the way going back to see, I was hurt.
“Q. Where were you when you were hurt? * * *
“A. I went through both doors. I just got through the first door from where I blasted, and that is where I got hurt. I was about 50 feet east of cross-cut 30 when I got hurt.
“Q. Were you examining that pipe overhead?
“A. Yes; the height of that pipe from the floor was about 6 feet. My height is over 5 feet, something like that; about 5 feet 6 or 7 inches. I didn’t have a light in my hand examining the pipe as I went west. I had my light in my hat, as they always carry it. I just opened the door and got through it.
“Q. Explain to the jury how you were examining the pipe.
“A. Just as I opened the door and wanted to start off, I was hurt. I didn’t discover where the air was escaping from the pipe, because I was knocked down. sfc #
“Q. About how long was it from the last explosion to the time you were hurt?
“A. I would judge it took 4 or 5 minutes before I lit my lamp and got down that far. The smoke usually clears away as rapidly as that. When they blast holes, and they get a draft, it clears in no time.
“Q. What did you expect to do upon reaching the place where the pipe was broken?
“A. I had to go to see, and stop or turn off that air; shut off the air. * * * At the time I was injured it was my intention to go to cross-cut 24 and shut off the air in that pipe. I understood there were several men west of cross-cut 30 in the twentieth level at that time. I understood that Tony Snarski went back to cross-cut 24. This pipe was closer by.
“Q Couldn’t he have turned off the air much more readily than you?
“A. I don’t know whether he heard it. He was standing farther away from me. I don’t know that the men at cross-cut 24 could have heard the air escaping from the pipe at cross-cut 30. They may have heard it, and maybe they didn’t. * * * The two Rosenbergs were mining there, working with a machine, at that time. I heard some explosions in that sub about midnight that night; before dinner; before midnight. I don’t know how many blasts were set off in that sub before midnight. I didn’t count them, but they didn’t go over eight or nine holes; I mean eight or nine holes at one blast.
“Q. Were several blasts set off in the sub before midnight?
“A. I didn’t count them. I don’t know whether or not there were several blasts set off in that sub before midnight. I didn’t count nobody’s holes. There was no blasting done in any other place near us that night before midnight; not close by. I heard the sound of an explosion after midnight, but it was far away; not just one blast; more than one; because the Montreal blasts probably every minute. I couldn’t hear all the blasts where I was in the twentieth level, because I was working here, and they were far away. I heard blasts after midnight that night up to the time we set off our charges.
“Q. If you were in the twentieth level, could you tell whether a blast, the report of which you heard, was set off in the sub or on the level?
“A. Yes; I could tell. I could tell by the sound.
“Q. Could any miner — any man who had had any experience in mining — distinguish between an explosion in the sub and an explosion at cross-cut 30 on the level if he were standing on the level at cross-cut 30 ?
“A. Yes; a miner working in the mine he had ought to.
“Q. Suppose a man stood at the second door as you go east from cross-cut 30, and a blast was set off in the sub, and suppose another blast a few minutes later was set off in the cross-cut; if he were still standing at this door, how could he tell which blast took place in the sub and which in the level or drift?
“A. In a place like I worked, and those two men below, you couldn’t tell much difference, because that hole takes the sound.
“Q You mean the hole at cross-cut 30?
“A. Yes; so it makes pretty near the same sound. There ain’t no difference. You could not tell the difference in that case. I couldn’t tell the difference between my holes that I blasted and his.”

Defendant moved for direction of a verdict on substantially the following grounds:

(1) Want of evidence of negligence on defendant’s part.

(2) The Rosenbergs and plaintiff were fellow-servants, and their failure to give warning was fellow-servants’ negligence.

(3) Plaintiff assumed the risk.

(4) Contributory negligence.

It is argued very strenuously that none of the reasons given in the motion for a directed verdict existed in this case. Taking plaintiff’s version of the affair, we have the following situation: The plaintiff is a miner with eight or nine years’ experience handling the dangerous explosive known as dynamite. He and his partner .are at work just above two miners who are at work in ore, who also use dynamite to blast. It is understood by all of them that before a blast is made notice shall be given by hallooing to those likely to be affected. The plaintiff and his partner drilled the holes and put in the dynamite; the plaintiff preparing the fuses and then sending his partner to give the warning. He then lights the fuses and retreats ,to a place of safety. He hears explosions and counts them. He then assumes all of the charges he has prepared have gone off, and goes from a place of safety to a place of danger, when one of the charges of dynamite he has himself prepared, and to which he has attached a fuse for the purpose of exploding it, explodes, and lie is hurt as the result of that explosion. Who contributed to this injury? Is it the defendant, who has instructed all the miners they must not set off a blast without warning, or is it the man who prepared the charge and attached the fuse and did not wait in a place of safety before going into a place of danger long enough to allow the fuse, which he had himself prepared, to do its work? When the facts are stated, such a situation is shown that the conclusion is irresistible that the conduct of plaintiff was not that of a reasonably prudent man; but it was conduct without which the accident could not have happened.

It will not be necessary to argue the other reasons for directing a verdict.

Judgment is affirmed.

Steere, C. J., and McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.  