Aho v. Coast Coal Co.

• Decision Date: 14 June 1912
• Citation: 124 P. 108,69 Wash. 43
• Parties: AHO v. COAST COAL CO.
• Court: Washington Supreme Court

124 P. 108

69 Wash. 43

AHO v. COAST COAL CO.

Supreme Court of Washington

June 14, 1912

Department 2. Appeal from Superior Court, Pierce County; Ernest M. Card. Judge.

Action by Victor Aho against the Coast Coal Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Williamson Williamson & Freeman, of Tacoma, for appellant.

Bates Peer & Peterson, of Tacoma, for respondent.

FULLERTON J.

The appellant owns and operates a coal mine located at Spiketon in Pierce county. The respondent was employed by the appellant to work as a miner therein, and while so engaged with others driving a gangway or tunnel along the coal vein was injured by a piece of shale rock falling upon him from the roof of the gangway. In his complaint the respondent stated the cause and manner of his injury in the following language: 'That while employed by defendant at mining in said vein of coal on said 23d day of September, 1910 plaintiff and his partner, John Johnson, came to a place in said vein about 6 feet from the face thereof where a large piece of shale rock was hanging from the ceiling apparently somewhat unsafe, whereupon plaintiff and his said partner decided for their safety that it was necessary and proper to put in a timber and brace said portion of the roof, whereupon they went to the entrance of said gangwaywhere timbers were kept for them with which to brace and protect and guard their working places, but defendant had failed to provide or deliver to plaintiff and his partner at the said place, or at their working place, or at the entrance thereto, any timbers or props with which to brace said shale rock, and with which to brace and protect said working place, whereupon plaintiff returned to said working place and proceeded to work, clearing up and shoveling out coal therefrom, and while so engaged a large portion of the shale rock in said roof, and particularly that portion thereof hanging from the ceiling, above referred to, and for which he sough timbers to brace and protect as hereinbefore alleged, fell down and upon plaintiff, striking him on the left leg, knocking him to the floor of said tunnel, and crushing his left leg, breaking the same above the knee, and in two places below the knee.' To the complaint the appellant interposed a general demurrer, which was overruled, whereupon it answered to the merits. A trial was thereafter had which resulted in a verdict and judgment for the respondent.

The appellant first assigns that the court erred in refusing to sustain its demurrer to the complaint. It is contended that the complaint shows upon its face that the respondent was guilty of contributory negligence. This contention has its basis in the allegation in the paragraph quoted to the effect that the respondent observed prior to his injury that a 'large piece of shale rock was hanging from the ceiling apparently somewhat unsafe.' It is argued that, while the act of the appellant in failing to keep a sufficient supply of timbers or props to enable the respondent to properly protect his working place may have relieved the respondent from the risk of injury by objects falling from the ceiling of the gangway he assumed in his contract of hire, it did not excuse contributory negligence on his part, and that it was contributory negligence for the respondent to work under the rock knowing that it was apparently unsafe. In other words, the contention is that, while the respondent did not assume the risk of working in the dangerous place, yet he was nevertheless guilty of contributory negligence in working therein knowing it to be unsafe. But this court has heretofore refused to recognize this contention as sound. In Hall v. West & Slade Mill Co., 39 Wash. 447, 81 P 915, 4 Ann. Cas. 587, the plaintiff was injured on an unguarded set screw which was allowed to project from a revolving shaft over which he was required to work. It was argued that while the plaintiff might not have assumed the risk of injury from the unguarded set screw, owing to the fact that the defendant had not complied with the statute requiring such set screws to be guarded, but he was nevertheless guilty of contributory negligence in...