Cinkovitch v. Thistle Coal Co.

Decision Date30 June 1909
Citation143 Iowa 595,121 N.W. 1036
PartiesCINKOVITCH v. THISTLE COAL CO.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Appanoose County; C. W. Vermillion, Judge.

Action at law to recover damages for personal injury. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.Howell & Elgin, for appellant.

J. M. Wilson and C. S. Wyckoff, for appellee.

WEAVER, J.

The plaintiff was employed by the defendant to labor as a coal miner. At the time of his injury he was engaged in driving or excavating an air course running parallel with the main passage or roadway extending from the bottom of the shaft through the stratum of coal. The air course was a passage about eight feet in width. Plaintiff had been working there alone for some time, and was driving the excavation at the rate of three to four feet per day taking out the coal, leaving the course roofed by the overlying stratum of rock. According to his story, after he had reached a point 60 to 75 feet from the entrance, he discovered in the roof what is known in miner's parlance as a “black bat.” This we understand is a piece of bituminous shale embedded in the rock immediately over the coal measure, and is liable, sometimes at least, to fall of its own weight when the coal beneath it has been removed. After driving the course some distance under the bat, and uncovering some 16 feet of its length, plaintiff notified the pit boss of the situation, and asked him to prop the bat or take it down. The boss examined the roof, and, as claimed by the plaintiff, replied that the roof was all right, and added: Prop it up, and I'll take it down in the morning.” There seems to have been but one prop at hand, and this plaintiff set up under the bat. He then went to other miners nearby, and found that they had no props, but was told that they had sent an order or request to the person in charge of such supplies to have some sent into the mine. Returning to his place of work, plaintiff began loading coal upon the push car by which it was to be moved toward the shaft, and within an hour or two the bat fell, injuring him severely. It is the claim of the defendant that plaintiff was an experienced miner, fully acquainted with the danger from an overhanging bat, and was himself clearly negligent in caring for his own safety. It denies the alleged promise of the pit boss to take down the bat, and claims it was plaintiff's duty as a miner to take it down for his own protection, and that he had been warned of the necessity of removing it, but had negligently postponed giving it the proper attention. There was evidence from which the jury could properly find that the support of the roof of an entry or an air course is not a part of a miner's duty unless it be at the face of the coal where he is continually removing the natural support, where he must put up props as he proceeds if the nature of the roof be such that rock fragments are liable to fall. As the work progresses, he is not charged with the duty of supporting the roof of the completed course behind him, and if in such completed course he discovers danger of a rock fall, and reports it to the operator or pit boss, the latter becomes charged with the duty of remedying the defect, though, according to some of the witnesses, the miner may, if he elects to do so, take down a bat, and is entitled to pay therefore as so much coal. The duty of each party and the manner in which it is performed are the subject of sufficient diversity in the testimony to take all these questions to the jury. The record is altogether too voluminous for us to attempt to set it out, and a partial statement would serve no useful purpose. We have read it with care, and are satisfied that, upon the question whether defendant was negligent with respect to the removal of the bat, there is sufficient to support a finding in the plaintiff's favor. On the further question of plaintiff's alleged contributory negligence and assumption of risk, the case presented is somewhat closer, but we think the facts and circumstances testified to by the plaintiff and in his behalf were such as the court could not properly hold him guilty of contributory negligence as a matter of law. He had worked under the bat for some days without a fall, and, if on the assurance of the boss that it was all right and would be taken down in the morning he decided to complete his day's work, we are not prepared to say conclusively that he was negligent. True, there is considerable evidence tending to show that, to securely support the bat, he should have used several more props than he did; but in questions of that kind there is so much room for honest variance in the opinions and judgments of men of equal skill and experience that a jury is better qualified than the court to determine whether the party has acted with reasonable prudence and caution. The contention of the appellant that the trial court erred in refusing to direct a verdict in its favor cannot be sustained. In further support of this conclusion, it may be said that at the close of the evidence the court at defendant's request submitted a large number of special interrogatories to the jury, and the answers taken as a whole strongly sustain the theory of the plaintiff, both as to the alleged negligence of the defendant and the absence of contributory negligence on the part of the plaintiff.

2. In support of its claim for a reversal of the judgment below, our attention is directed to 67 assignments of error, each of which is argued with much earnestness, and supported by a large number of citations and references to the books. Within the permissible limits of an opinion, it is not possible to consider and discuss them separately, but there are some questions raised to which we will briefly advert, and, as to such others as may not be specifically mentioned, we will say that, after full consideration, we find nothing in them involving prejudicial error. It is said that the court should have entered judgment for the defendant on the answers given to the special interrogatories. We cannot so hold. Among other things, it is there found that the duty of looking after the roof was upon the company; that, considering the material at hand, plaintiff used reasonable care in propping the roof; that plaintiff, while knowing that the bat was heavy, was not acquainted with its general characteristics; that he did not know it was liable to fall upon him; that he used reasonable care for his own safety; that, as a reasonably prudent man, he had a...

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2 cases
  • Maloney v. Winston Bros. Co.
    • United States
    • Idaho Supreme Court
    • 9 Mayo 1910
    ... ... C. A. 636; Larsson v ... McClure, 95 Wis. 533, 70 N.W. 662; Russell Creek ... Coal Co. v. Wills, 96 Va. 416, 31 S.E. 614; Petaja ... v. Aurora Iron Min. Co., 106 Mich. 463, 58 ... 464; Rowden v ... Schoenherr-Walton M. Co., 136 Mo.App. 376, 117 S.W. 695; ... Cinkovitch v. Thistle Coal Co. (Iowa), 121 N.W ... 1036; Westerlund v. Rothschild, 53 Wash. 626, 102 P ... ...
  • Cinkovitch v. Thistle Coal Co.
    • United States
    • Iowa Supreme Court
    • 30 Junio 1909

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