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rocks rolling down the stope or raise to the drift where plaintiff was at work. The block-holers going through the different levels worked in pairs; the trammers worked together in irregular numbers according to convenience and necessities of loading. On the occasion in question plaintiff worked with two other trammers loading tram cars at the spot indicated.
Three witnesses were sworn, plaintiff, Reily, the block-holer who threw down the rock that did the injury, and another of the trammers, who gave evidence through an interpreter confirmatory, so far as material here, of plaintiff's testimony. Briefly stated as bearing upon the duties of the trammers and blockholers in that mine, and what each was doing at the time of the accident, plaintiff testified that his duties as a trammer were shoveling dirt or copper rock into a car which stood on the track running along the level where they were loading; that was the trammer's business, and they were not allowed to spend any time looking around or after the place where they were working; that at the time he was hurt he was shoveling rock into the car at the footwall in the level, and the rock came down from the rise in the stope; that no one gave him any warning that it was coming, and he had no knowledge that there was any danger of its doing so; that a short time before the accident he saw the block-holers go up into the stope, and heard them say something to some of the trammers as they passed by, but he did not pay any attention, and did not know what they were doing up there; that he had no time to look, and did not look, because they had to get out at least 16 cars, and he was busy at his work; that he was not supposed to pay any attention to the block-holers before getting the warning from them, it being their duty to give the trammers warning when they threw down their material. He first saw the rock when it was a yard or two from him, and tried to escape, but it struck him on the leg, breaking or crushing his ankle and injuring him severely; that the block-holers, who were supposed to make it safe for the trammers and give them notice, came around once or twice a day, and, if there were any big rocks that the trammers could not move, would break them up by blasting if necessary; besides this, if they found any big rock in the stope, they would throw it down for the trammers, and they sometimes examined the hanging wall in place of the timbermen; "besides that, they would shovel some of the loose dirt down to the level once in a while, and that was part of their work;
* help us by breaking big rocks or shoveling them down towards the level;" that sometimes the trammers themselves would go up and shovel the rock down if they didn't have any dirt on the level.
Reily, who was yet in defendant's employ at the time of the trial, and, as stated in the brief of plaintiff, was called for examination under the statute, testified on this subject: That the trammers are hired to shovel rock into the cars and push them out where they are attached to the cable, having to hustle most of the time at their own work, and are not supposed to pay attention to anything else except their work. That witness worked as a block-holer, which brought him in connection with the trammers right along on the different levels. That he knew practically all the rules and customs of the mine. block-holer he had to break up and throw down rock from the levels, stopes, and raises, and blast the rock where necessary, throwing the rock down where the trammers could get hold of it. When the block-holers were working above the trammers they are supposed to give the trammers notice when they are going to blast or throw down any rock. That duty of warning them of danger was imposed on the block-holers. That on the day plaintiff was injured, in the course of his duties as a block-holer witness went into the thirty-third level and to the stope, or raise, up from the level where the trammers were at work, accompanied by his partner, who since died. On going up there they found a large rock which they threw down. It was on the footwall, and they barred it off and rolled it over, giving the trammers warning before doing so, as was their duty. That such was the custom and rule of the company. That the trammers had a right to, and did, rely upon being given such notice under the rules and custom which there prevailed. That in going from level to level, breaking up these large rocks and sending them down, if during their shift they had nothing else to do, they were supposed to help the trammers pass down the dirt, which they did, and when they came back to this level the trammers did not have much dirt, so they went up and ran some down for them at their request.
We need spend no time on the question of whether these men were fellow-servants in the work at which they were engaged. It was manual labor, for the same employer, at a common employment. They were engaged not only in the same general business of mining, but in a similar line of work, handling the rock, after it was mined, in the course of getting it to the surface. While each had certain duties to perform in that connection, their work at times so interlocked that each did identically the same thing. The trammer and block-holer were more closely associated in the line of their duties than the trammer and miner; the block-holer's services being intermediate and devoted exclusively to aiding in the work of moving the rock to the surface after it is mined. In Petaja v. Mining Co., 106 Mich. 463 (64 N. W. 335, 66 N. W. 951, 32 L. R. A. 435, 58 Am. St. Rep. 505), where the question of negligence on the part of the miners resulting in an injury to a trammer arose, the court said that, if it was the fault of the miner, “it was the negligence of a fellow-servant under the plainest rules."
"Generally employees working in or about a mine, quarry, or other excavation are fellow-servants." 26 Cyc. p. 1348, citing numerous cases.
In Schroeder v. Railroad Co., 103 Mich. 213, 215 (61 N. W. 663, 29 L. R. A. 321, 50 Am. St. Rep. 354), Justice GRANT thus tersely states the situation in cases like the present, in apt language:
“The doctrine of nonliability for the negligence of a fellow-servant is so firmly established, and has been so frequently affirmed, in this State, that I deem it unnecessary to cite the authorities. The difficulty has always been in determining whether the servant whose negligence caused the injury was, under the facts of each case, the alter ego or a fellow-servant."
And Justice MONTGOMERY, in a concurring opinion, as to reversal, states the rule as to nondelegable duties of the master as follows:
"In general, we think the true test is whether the person alleged to be a representative of the master is engaged in the performance of an act which it is the duty of the master to perform for the protection of his employees,—such a duty as that of providing a safe place to work, and safe machinery and appliances; exercising due care in the selection of servants engaged in the same employment; giving proper directions as to use of dangerous machinery by inexperienced employees; and the establishment of proper rules and regulations for the conduct of the business.”
This statement of the test follows the line pointed out by Justice COOLEY in Quincy Mining Co. v. Kitts, 42 Mich. 34 (3 N. W. 240), where it is said in that connection:
“The servant assumes all the usual risks of his employment, and among these is the risk that fellowservants will sometimes be careless, and that injuries will result. All that can be required of the master in that regard is that his servants shall be prudently chosen, and that they shall not be retained in his service after unfitness or negligence has been discovered and has been communicated to him."
In the instant case the only negligence, charged as a nondelegable duty not performed, is the failure of Reily to shout a warning when he himself was about to send down the rock, as by rule and custom it was his duty to do. He is shown to have been familiar with that rule, an experienced man well posted in the duties of his employment, and there is no evidence or claim that he was incompetent or had previously failed in this or any other duty.
Counsel for plaintiff cite in their brief certain authorities bearing largely on the question of duty to warn and give notice, several from other jurisdictions not altogether in harmony with the rulings of this court, and say:
"From the foregoing authorities, and numerous others, it is clear that the law imposes the duty of making and keeping plaintiff's place safe upon the defendant. But, regardless of that, it appeared by the evidence here that the plaintif was relieved of that duty, and was prohibited from performing it by the defendant. This distinguishes this case from those in which the safe rule is held inapplicable. There can be no longer any doubt in this State that, 'where a duty is assumed by the master, or is imposed upon him by contract, or is customarily performed by him, it becomes a nondelegable one"-citing Baker v. Railroad Co., 169 Mich. 609 (135 N. W. 937); Scendar v. Copper Co., 169 Mich. 665 (135 N. W. 951); Oiva v. Mining Co., 178 Mich. 645 (146 N. W. 181).
The Baker Case was affirmed by a divided court on the theory that defendant violated a contract duty which decedent had a right to rely upon relative to cutting hose and chains on passenger trains. The quotation extracted from the case was taken from a text-book on Personal Injuries on Railroads. As the case was affirmed by an equally divided court, what was there said cannot be regarded as controlling precedent elsewhere. The Scendar Case involved purely a question of safe place and the danger from overhanging rock where plaintiff was at work. The