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Ryan v. Manhattan M. Co.

December 31, 1914

JOHN RYAN, RESPONDENT, V. THE MANHATTAN BIG FOUR MINING COMPANY (A CORPORATION), APPELLANT.


Appeal from the Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.

H. R. Cooke, for Appellant.

P. M. Bowler, for Respondent.

By the Court, McCarran, J. (after stating the facts):

[2] The evidence presented by the record in this case as to the manner in which the accident was caused out of which respondent sustained his injuries is conflicting. It was the contention of respondent in the court below, and the case was tried solely upon the theory, that the accident which resulted in the injury of respondent was brought about by reason of the unstapled bell cord, swinging in the shaft, coming in contact with and in some manner becoming entangled with the men, Pace and Ryan, while they were ascending on the rim of the bucket, the contention being that entanglement with the bell cord caused Pace and Ryan to be thrown from the rim of the bucket, the position and theory of the respondent being that the accident was brought about by the wilful negligence of the appellant company in failing to comply with the provisions of section 6799, Revised Laws of Nevada, which is as follows:

“It shall be unlawful for any person or persons, company, or companies, corporation or corporations, to sink or work through any vertical shaft at a greater depth than three hundred and fifty feet, unless the said shaft shall be provided with an iron-bonneted safety cage, to be used in the lowering and hoisting of the employees of such person or persons, company or companies, corporation or corporations. The safety apparatus shall be securely fastened to the cage and shall be of sufficient strength to hold the cage loaded at any depth to which the shaft may be sunk. In any shaft less than three hundred and fifty feet deep where no safety cage is used and where crosshead or crossheads are used, platforms for employees to ride upon in lowering and hoisting said employees shall be placed above said crosshead or crossheads. Any person or persons, company or companies, corporation or corporations or the managing agent of any person or persons, company or companies, corporation or corporations, violating the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in the sum of five hundred dollars,

[38 Nev. 92, Page 97]

or imprisoned in the county jail for a term of six months, or by both such fine and imprisonment.”

The evidence in this case discloses that an iron-bonneted safety cage was somewhere about the workings of the mine, but not in use at any time during the period in which the respondent, Ryan, was an employee of the appellant company. It is the contention of appellant that inasmuch as this safety cage was on the premises, although not used for the purpose of lowering and hoisting the employees while so engaged in sinking the shaft, the appellant company had sufficiently complied with the law, nevertheless.

It is unnecessary for us to comment on the absence of evidence in the record as to the condition of this safety cage, which appears to have been on the premises. It may or it may not have been in working order; there is nothing in the record that would explain its condition in this respect. But, aside from this phase of the question, which plays no part in the case, it is our judgment that the contention of appellant with reference to this phase is untenable.

A statute is not susceptible of interpretation such as that which appellant would seek to put upon it. Clearly, by the terms of the statute it is made unlawful to sink or work through any vertical shaft at a greater depth than 350 feet, unless in the lowering and hoisting of employees, in conducting such work or such sinking, the shaft be provided with an iron-bonneted safety cage.

[3] It is unnecessary for us to dwell upon the fact that a bucket and crosshead such as that which was used in the vertical shaft of appellant on the date on which respondent was injured is not such an appliance as that which is contemplated by section 6799.

Section 4222, Revised Laws—being section 25 of an act entitled “An act creating the office of inspector of mines; fixing his duties and powers,” etc.—is as follows:

“The cage or cages in all shafts over 350 feet in depth shall be provided with sheet-iron or steel casing, not less than one-eighth inch thick, or with a netting composed of

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wire not less than one-eighth inch in diameter and with doors made of the same material as the side casing, either hung on hinges or working in slides. These doors shall extend at least four feet above the bottom of the cage and must be closed when lowering or hoisting men, except timbermen riding on the cage to attend to timbers that are being lowered or hoisted; provided, that when such cage is used for sinking only, it need not be equipped with such doors as are hereinbefore provided for. Every cage must have overhead bars of such arrangement as to give every man on the cage an easy and secure handhold.”

Reviewing this provision in conjunction with section 6799, a complete description of that which is in the latter section termed “an iron-bonneted safety cage” is given; and in section 4222 special provision is made for the unusual necessities attendant upon the sinking of shafts such as that which was being accomplished on the property of appellant company when this accident occurred. In other words, the statute provides that, when such cage is used for sinking only, it need not be equipped with such doors as are otherwise required. This special provision was undoubtedly enacted by the legislature with a view to meeting the conditions which are ever attendant where the work of sinking is being carried on. The mere having upon the premises such an apparatus as that which is contemplated by section 6799 does not meet the requirements of the law, where the master, in hoisting or lowering employees working through a vertical shaft, makes no use of the appliance; and the mere fact that the employees failed to demand such an appliance to be used in lowering or hoisting them through the shaft, when it had attained a depth greater than 350 feet, does not relieve the master of the force and effect of the statute. (Peabody-Alwert Coal Co. v. Yandell, 179 Ind. 222, 100 N. E. 758.) This statute is not only a penal statute in its nature, but it is a remedial statute, intended not primarily to subject the violator to fine or imprisonment, but rather intended to safeguard life and limb of

[38 Nev. 92, Page 99]

those who, in the pursuit of their vocation, are called upon to go into places where danger is attendant at every moment; and science and practical experience have brought about this legislation, providing the designated appliance as a practical fulfillment of the common-law rule that requires the master to furnish reasonably safe appliance and a reasonably safe place with which and in which for the servant to work. The equipment prescribed being, in the judgment of the legislative body, the best means for affording reasonable safety to the employed, that equipment or its equivalent in safety efficiency is made obligatory on the employer. (Miles v. Central Coal and Coke Co., 172 Mo. App. 229, 157 S. W. 867; Caspar v. Lewin, 82 Kan. 604, 109 Pac. 657, 49 L. R. A. n.s. 526.) This statute was not enacted with its primal object that of punishment for its violation, but the penalty imposed ...


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