This is an action under the employers’ liability law, in which the plaintiff seeks to recover damages for personal injuries suffered by him as a result of an accident, and from a judgment
• The complaint properly alleges a canse of action under the employers’ liability law, but the answer denies that the injury was caused by an accident due to a condition of the occupation, and alleges affirmatively that it resulted from appellee’s negligence in failing to obey and comply with the orders and instructions of the defendant regarding such occupation, as well as the laws of the state of Arizona prescribing the duties of one engaged therein, and from his failure to exercise ordinary care, caution, and prudence for his own safety.
Appellee, Francisco Campillo Bender, ' was employed by the .Morning Glory Mining Company as a miner, and while in the discharge of his duties was injured on June 1, 1920, by a blast or explosion which threw rocks and dirt against his body, resulting in the total loss of his sight. The accident occurred in this way: At 3:35 that afternoon appellee and his partner, Francisco Torres, lighted the fuse in five holes which they had just charged for blasting, and immediately withdrew to a tunnel some three or four hundred feet away. Within five minutes thereafter they heard three explosions, but remained in their place of safety fifteen minutes longer waiting for the other two, and, not hearing them, returned to the holes at 3:55 in order, as appellee testified, to ascertain which two had missed, so they could “take care of the next shift,” and just as they “got to the place the holes went off,” with the result that both were injured, appellee suffering complete loss of both eyes. The evidence shows that Chris B. Wilson was foreman at the mine, and that he was known to appellee, who had been both hired and directed where to work by him.
The essential facts of the case are not disputed, hence it is a question of the proper application of the law. The assignments, with one exception, are based
“There can be no question that, where a servant’s injury was proximately caused by the fact that he was violating a statute or municipal ordinance, the meaning and effect of which are perfectly clear, he cannot recover damages. This doctrine is applied regardless of the fact that the employer may have directed his servants to violate the law, or may have sanctioned the growth and continuance of a custom which amounts to a contravention of the law. ’ ’
It is true that it was appellee’s duty to report to the foreman or shift boss having charge of that part of the work that two holes had misfired; but was his return to them after a lapse of twenty minutes from the lighting of the fuse in each hole, for the purpose of taking “care of the next shift,” a failure to comply with the Statute? We think not, because it is clear from the evidence that fuse of the character of the three-foot lengths used in each of these holes burns at the rate of one foot per minute, and necessarily each of these pieces wquld burn to the powder in less than five minutes from the time they were lighted if there was no defect in them, and a number of witnesses experienced in mining testified that it is considered perfectly safe to approach misfire holes after a lapse of twenty minutes, and that it is customary for the miner to do this unless otherwise instructed by his employer. In this case appellee testified that no other instructions had been given him, and that
It is claimed that it was error to admit testimony proving it to be the custom among miners to return to the locality of the misfire holes in twenty minutes because such a custom could not relieve appellee of his duty to comply with the statute. This contention, however, is disposed of by the statement just made that in returning to the holes appellee was not violating the statute, but attempting to gain, in the only way open to him, information which would enable him to perform his statutory duty in a satisfactory manner. The statute was enacted for the benefit of the next shift, not for those having knowledge of the situation, and the custom, instead of conflicting with it, in practice supplements it by enabling the workman to report more accurately the conditions.
The only other error complained of is the giving of the following instruction:
“It is unnecessary to go into the reasons for the passage of such a law, it is unnecessary to dwell upon the fairness or unfairness of such a law, but it is the law that under those circumstances that an employee may recover for injuries to his person while engaged in hazardous occupation, whether the employee is to blame or not, and that, under the facts shown by the evidence, is claimed to be one of those occupations.”
“The occupation is undoubtedly hazardous, and if other facts exist he is entitled to recover whether the employer is at fault or not. So the legislature has enacted this act to protect the safety of employees in hazardous occupations, such as mining, smelting, etc., and any employer, whether individual, association, or corporation, shall be liable for the death or injury, caused by any accident due to a condition or conditions of such occupation, dr due to such occupation, of any employee in the service of such employer in such hazardous occupation, in all cases where such death or injury of such employee shall not have been caused by the negligence of the employee killed or injured.”
It is clear from a reading of the entire instruction that the word ‘ ‘ employer ’ ’ was intended, and that the jury must have so understood it. In the very next sentence the jury is told that the employee is entitled to .recover whether the “employer” is at fault or not, and at the end of the instruction that the employer is liable, when the proper'facts exist, in all cases where the death or injury shall not have been caused by the negligence of the employee killed or injured. In the succeeding instruction the statement is made that five things must be proven before appellee can recover, and the fifth is that the injury was received by him without fault or negligence on his part, and this idea is repeated several times in the instructions. What is meant by negligence of the employee as a defense is defined as follows:
“By negligence on his part is simply meant the want of ordinary care, as I have defined it, and in
It is clear from the entire instructions that it was a mere lapsus linguae or slip of the tongue and that the jury could not have been misled by it. But, even if it did not understand that the reference was to the employer instead of the employee, appellant was not injured, because the evidence, which is undisputed, shows conclusively that under the custom prevailing in that section the injury was not due to appellee’s alleged negligence in returning to the holes within twenty minutes after lighting the fuse, but that it resulted from an accident due to a condition of the employment. No facts are disclosed indicating that appellee was in any way to blame; hence the jury could not have been misled or appellant injured by it. If there had been any evidence pointing to the contrary, and it were not so plain that it was a mere slip of the tongue, which the jury understood, appellant might be able to argue this assignment with plausibility.
The judgment is affirmed.