THAYER, Circuit Judge.
The question of principal importance which this record presents, and it is the only one which we deem it necessary to consider, is whether the trial court was justified in withdrawing the case from the jury at the conclusion of all the testimony. The action was brought by Ellen A. Westland, the plaintiff in error, to recover damages from the Gold Coin Mines Company, the defendant in error, on account of the death of her husband, Andrew West-land, who was billed on 'January 12, 1898, while stoping ore for the defendant company in one of its mines in Gilpin county, Colo. The deceased was working at the time of his death about 900 feet beneath the surface of the earth, on a, stull that had been erected by the defendant in one of the levels of its mine for the purpose of enabling its employés to stand thereon while breaking down the mineral-bearing rock. The stull that had been so erected fell while the deceased was working thereon, and precipitated him, together with a mass of rock and earth resting thereon, to the floor of the level, a distance of about 70 feet, causing his instant death. Concerning these facts there was no controversy. The complaint charged negligence on the part of the defendant company in that the stull timbers were of insufficient size and strength to sustain the mass of rock and earth which was liable to fall upon it when the miners were engaged in stoping ore; that the stull timbers-were also insufficient in number, having been placed too far apart; and that the ends thereof were not properly let into the side walls.
The evidence adduced during the trial tended to the establishment of the following facts: The stull which fell was constructed by the defendant, about sis weeks or two months prior to the accident, of ordinary spruce or white pine timber which was grown in the vicinity of the mine. The rein in which the stull was set up varied in width from 2 to 12 feet, and was 10 or, 12 feet wide at the place where the accident occurred, and was nearly vertical; having very little dip as it descended into the earth. The stull timbers, at their respective ends, 'rested in headings in the hanging wall and in hitches in the foot wall, and corresponded very nearly in width with the width of the vein where they happened to be set. The stull timbers where the accident occurred were 10¿ feet long according to the estimates of some witnesses, and 12 feet long according to other testimony, and were set from 5 to 6 feet apart, and were from 9 to 12 inches in diameter at the smaller ends. The timbers in question were covered with lagging that was laid lengthwise of the vein, so as to form a flooring to support the ore as it was broken down by blasting. The deceased took no part in erecting the stull which fell, and had little opportunity, prior to the accident, to observe the size of the stull timbers or the manner in which they were placed, as there was no light in the mine other than that made by the candles which the miners carried,, and as the floor of the stull was usually covered with a mass of earth or rock, and was about 70 feet above the bottom of the level, so that it could not be inspected from below. On the day of the accident the deceased and-his fellow workmen fired a shot about 10 o’clock a. m. which had the effect of loading the stull, taking into account the rock previously broken down, to a depth of about 9 feet. Shortly after [61]*61they had returned to the stull to resume work, at 11:45 a. m., the stull fell, while they were standing on it and working in the usual way, carrying with it the deceased and his fellow workmen. The stull was constructed for the purpose of supporting a mass of earth and rock from 18 to 20 feet thick. After the accident three or more of the stull timbers were found, at the bottom of the level, which were broken about in the center. One witness for the plaintiff, who was a practical miner, testified without objection that the lagging gave way on the occasion of the accident because “the stull timber broke.” Two other witnesses (one of them being an assistant mining inspector for the bureau of mines of the state of Colorado, and the other a practical miner) expressed the opinion, in substance, that the stull timbers employed in constructing the stull, in view of their length and the space between them, were insufficient to support the weight which the stull was designed to carry. There was some conflict in the testimony with reference to the. length and diameter of the timbers that had been used in constructing the stull, and their distance apart. The defendant company offered some testimony which tended to show that the stull in question was constructed in the usual manner, and with timbers of the same kind, size, and strength that were usually-employed by mine owners in constructing stulls for stoping purposes in such viens as the one where the accident occurred. The defendant also offered some testimony which tended to show that, a day or two preceding the accident, the deceased and his fellow workmen had been cautioned by the foreman of the mine against firing such heavy' blasts as they had once fired.
It is obvious, we think, that the defendant company is responsible in damages for the death of the plaintiff’s husband, if his death was occasioned by any defect or insufficiency in the stull which might have been avoided by the exercise of ordinary care when the stall was constructed. The defendant caused the structure in question to be erected for the use of its employós in a narrow and dark fissure 900 feet beneath the surface of the earth, expecting that it would be weighted at times with tons of earth and rock, and with knowledge that its fall meant instant death to all who happened to be standing on or underneath the structure. It had provided a place for its employes to work, and it was its duty to make that place safe and secure, in so far as that object could be accomplished by the exercise of reasonable care in providing stull timbers of adequate size and strength, and by placing them sufficiently close together, and by making the proper hitches and headings in the foot and hanging walls, so that the structure would support the weight that it was expected to carry. Moreover, the deceased and Ms fellow workmen had the right to assume, unless they were advised to the contrary, that these duties of the master had been discharged, that the stull was of sufficient strength to support at least 20 feet of earth and rock, and that the defendant, in constructing it, had exercised a decree of care commensurate with the location of the stull, the character of the work to be done thereon, the weight it would he required to carry, and the dire results that would inevitably follow if it should chance to fall. A rule of law devolving such duties on the master in cases like the one in [62]*62hand is so reasonable, just, and humane that we deem it unnecessary to do more than refer to a few of our own decisions in which it has been stated and enforced. Railway Co. v. Jarvi, 10 U. S. App. 439, 3 C. C. A. 433, 53 Fed. 65; Mining Co. v. Ingraham, 36 U. S. App. 1, 17 C. C. A. 71, 70 Fed. 219; Railway Co. v. Jackson, 27 U. S. App. 519, 522, 12 C. C. A. 507, 65 Fed. 48; Manufacturing Co. v. Johnson, 60 U. S. App. 661, 669, 670, 32 C. C. A. 309, 89 Fed. 677, 681.
This leads to the inquiry whether the evidence adduced at the trial was of such a nature as would warrant a jury in drawing the inference that the stull was of insufficient strength, or that it had been improperly constructed, by reason of the failure of the defendant company to exercise a reasonable degree of care and diligence while erecting it; and this question, we think, should be answered in the affirmative.
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THAYER, Circuit Judge.
The question of principal importance which this record presents, and it is the only one which we deem it necessary to consider, is whether the trial court was justified in withdrawing the case from the jury at the conclusion of all the testimony. The action was brought by Ellen A. Westland, the plaintiff in error, to recover damages from the Gold Coin Mines Company, the defendant in error, on account of the death of her husband, Andrew West-land, who was billed on 'January 12, 1898, while stoping ore for the defendant company in one of its mines in Gilpin county, Colo. The deceased was working at the time of his death about 900 feet beneath the surface of the earth, on a, stull that had been erected by the defendant in one of the levels of its mine for the purpose of enabling its employés to stand thereon while breaking down the mineral-bearing rock. The stull that had been so erected fell while the deceased was working thereon, and precipitated him, together with a mass of rock and earth resting thereon, to the floor of the level, a distance of about 70 feet, causing his instant death. Concerning these facts there was no controversy. The complaint charged negligence on the part of the defendant company in that the stull timbers were of insufficient size and strength to sustain the mass of rock and earth which was liable to fall upon it when the miners were engaged in stoping ore; that the stull timbers-were also insufficient in number, having been placed too far apart; and that the ends thereof were not properly let into the side walls.
The evidence adduced during the trial tended to the establishment of the following facts: The stull which fell was constructed by the defendant, about sis weeks or two months prior to the accident, of ordinary spruce or white pine timber which was grown in the vicinity of the mine. The rein in which the stull was set up varied in width from 2 to 12 feet, and was 10 or, 12 feet wide at the place where the accident occurred, and was nearly vertical; having very little dip as it descended into the earth. The stull timbers, at their respective ends, 'rested in headings in the hanging wall and in hitches in the foot wall, and corresponded very nearly in width with the width of the vein where they happened to be set. The stull timbers where the accident occurred were 10¿ feet long according to the estimates of some witnesses, and 12 feet long according to other testimony, and were set from 5 to 6 feet apart, and were from 9 to 12 inches in diameter at the smaller ends. The timbers in question were covered with lagging that was laid lengthwise of the vein, so as to form a flooring to support the ore as it was broken down by blasting. The deceased took no part in erecting the stull which fell, and had little opportunity, prior to the accident, to observe the size of the stull timbers or the manner in which they were placed, as there was no light in the mine other than that made by the candles which the miners carried,, and as the floor of the stull was usually covered with a mass of earth or rock, and was about 70 feet above the bottom of the level, so that it could not be inspected from below. On the day of the accident the deceased and-his fellow workmen fired a shot about 10 o’clock a. m. which had the effect of loading the stull, taking into account the rock previously broken down, to a depth of about 9 feet. Shortly after [61]*61they had returned to the stull to resume work, at 11:45 a. m., the stull fell, while they were standing on it and working in the usual way, carrying with it the deceased and his fellow workmen. The stull was constructed for the purpose of supporting a mass of earth and rock from 18 to 20 feet thick. After the accident three or more of the stull timbers were found, at the bottom of the level, which were broken about in the center. One witness for the plaintiff, who was a practical miner, testified without objection that the lagging gave way on the occasion of the accident because “the stull timber broke.” Two other witnesses (one of them being an assistant mining inspector for the bureau of mines of the state of Colorado, and the other a practical miner) expressed the opinion, in substance, that the stull timbers employed in constructing the stull, in view of their length and the space between them, were insufficient to support the weight which the stull was designed to carry. There was some conflict in the testimony with reference to the. length and diameter of the timbers that had been used in constructing the stull, and their distance apart. The defendant company offered some testimony which tended to show that the stull in question was constructed in the usual manner, and with timbers of the same kind, size, and strength that were usually-employed by mine owners in constructing stulls for stoping purposes in such viens as the one where the accident occurred. The defendant also offered some testimony which tended to show that, a day or two preceding the accident, the deceased and his fellow workmen had been cautioned by the foreman of the mine against firing such heavy' blasts as they had once fired.
It is obvious, we think, that the defendant company is responsible in damages for the death of the plaintiff’s husband, if his death was occasioned by any defect or insufficiency in the stull which might have been avoided by the exercise of ordinary care when the stall was constructed. The defendant caused the structure in question to be erected for the use of its employós in a narrow and dark fissure 900 feet beneath the surface of the earth, expecting that it would be weighted at times with tons of earth and rock, and with knowledge that its fall meant instant death to all who happened to be standing on or underneath the structure. It had provided a place for its employes to work, and it was its duty to make that place safe and secure, in so far as that object could be accomplished by the exercise of reasonable care in providing stull timbers of adequate size and strength, and by placing them sufficiently close together, and by making the proper hitches and headings in the foot and hanging walls, so that the structure would support the weight that it was expected to carry. Moreover, the deceased and Ms fellow workmen had the right to assume, unless they were advised to the contrary, that these duties of the master had been discharged, that the stull was of sufficient strength to support at least 20 feet of earth and rock, and that the defendant, in constructing it, had exercised a decree of care commensurate with the location of the stull, the character of the work to be done thereon, the weight it would he required to carry, and the dire results that would inevitably follow if it should chance to fall. A rule of law devolving such duties on the master in cases like the one in [62]*62hand is so reasonable, just, and humane that we deem it unnecessary to do more than refer to a few of our own decisions in which it has been stated and enforced. Railway Co. v. Jarvi, 10 U. S. App. 439, 3 C. C. A. 433, 53 Fed. 65; Mining Co. v. Ingraham, 36 U. S. App. 1, 17 C. C. A. 71, 70 Fed. 219; Railway Co. v. Jackson, 27 U. S. App. 519, 522, 12 C. C. A. 507, 65 Fed. 48; Manufacturing Co. v. Johnson, 60 U. S. App. 661, 669, 670, 32 C. C. A. 309, 89 Fed. 677, 681.
This leads to the inquiry whether the evidence adduced at the trial was of such a nature as would warrant a jury in drawing the inference that the stull was of insufficient strength, or that it had been improperly constructed, by reason of the failure of the defendant company to exercise a reasonable degree of care and diligence while erecting it; and this question, we think, should be answered in the affirmative. The fact that the stull fell demonstrates that it was insufficient to support the load with which it was burdened at the time it fell. The case in hand, then, is not of that kind of which it may be said that the occurrence of the accident affords no evidence of negligence. If the stull had been constructed as it should have been, it would easily have borne the weight that was. upon it at the time it fell. Hence the fall of the structure suggests forcibly that the stull timbers were insufficient either in strength or number, or that the supports let into the side walls of the vein were insufficient, and that proper care had not been exercised by those who erected it. Barnowski v. Helson, 89 Mich. 523, 50 N. W. 989; Mulcairn’s Adm’x v. City of Janesville, 67 Wis. 25, 29 N. W. 565; Bahr v. Lombard, 53 N. J. Law, 233, 21 Atl. 190, 23 Atl. 167. A reasonable person might very well have reached the conclusions last stated by force of the maxim, “Res ipsa loquitur.” -
Such a conclusion • is re-enforced by the evidence, which showed without contradiction that the several broken stull timbers that were found at the bottom of the mine after the accident were broken about in the center, where one would naturally expect them to be broken if the fall of the structure was occasioned because the stull timbers were deficient in strength or number to support the partial load which was upon it when it fell. It must also be borne in mind that two witnesses for the plaintiff, who were fully competent to form a reliable judgment on that subject, expressed the opinion, in substance, that the stull timbers were insufficient to carry the load that the stull was expected and designed to carry. In opposition to the view that it was of insufficient strength, and that some one blundered who was concerned in its erection, we have merely an hypothesis that the deceased and his fellow workmen had fired a blast which was too heavy, and by that means had jarred the stull timbers out of place, SO' that they did not have a proper bearing on the side walls. This hypothesis may be entitled to some weight, although it appears that the structure did not fall when the last blast was fired, nor for more than an hour thereafter. But what weight should be accorded to the latter hypothesis was clearly a question for the jury, whose province it was to settle all controverted issues of fact, and to draw such inferences from the facts found as they deemed reasonable. In view of the fail of the stull under the [63]*63circumstances heretofore detailed, it was also the province of the jury to determine what weight they would give to the testimony of those witnesses who testified, in behalf of the defendant company, that the stull was constructed in the usual manner and with timbers of the usual size and strength. Surely a court would not be authorized, in the light of what happened and all the circumstances of the case, to accept the evidence on that subject as conclusive, and as leaving nothing for the jury to determine. In view of all the evidence which the record contains, we are constrained to hold that the jury might well have concluded that the stull in question was inadequate to support the weight which it was designed to carry, and that its ‘insecurity was due to a want of ordinary care on the part of the defendant company. It is accordingly ordered that the judgment below be reversed, and that the cause be remanded for a new trial.