Allen v. Bear Creek Coal Co.

• Decision Date: 29 April 1911
• Citation: 115 P. 673,43 Mont. 269
• Parties: ALLEN v. BEAR CREEK COAL CO. et al.
• Court: Montana Supreme Court

115 P. 673

43 Mont. 269

ALLEN v. BEAR CREEK COAL CO. et al.

Supreme Court of Montana

April 29, 1911

Appeal from District Court, Carbon County; Sydney Fox, Judge.

Action by John Allen against the Bear Creek Coal Company and others. From a judgment for plaintiff, and an order denying new trial, defendants appeal. Reversed and remanded for a new trial.

George W. Pierson, W. W. Patterson, and W. M. Johnston, for appellants.

A. C Spencer and Meyer & Wiggenhorn, for respondent.

BRANTLY. C.J.

This action was brought by the plaintiff to recover damages for an injury suffered by him during the course of his employment by the Bear Creek Coal Company, as a coal miner. The defendant Hopka was the superintendent, having general control of the mines of the company, and defendant Fleming was the mine foreman. The complaint alleges:

"(4) That it was the duty of the said defendants, and each and all of them, on or about the 23d day of December, 1908, and at the time of the injury hereinafter complained of and more particularly described, to sufficiently timber a certain place in said mine, which said place was known as room 13 in No. 3 mine, second east entry, and it was their duty to inspect such place at such intervals as might enable them to make the said place reasonably free from danger.

"(5) That it was the duty of the said defendants at all times to use reasonable and ordinary care to furnish this plaintiff with a reasonably safe place to work when obeying orders of said defendants.

"(6) That at the time of the grievance hereinafter complained of, and for a long time prior thereto, a condition of insufficient timbering had existed, and that said condition of insufficient timbering was either actually known to the said defendants, or by the exercise of ordinary and reasonable care the said defendants would have known of such insufficient timbering and dangerous condition; but this plaintiff says that he did not know that the said condition was dangerous, and did not know that the place where he was working was unsafe.

"(7) That on or about the 23d day of December, 1908, while this plaintiff, acting under the command of the defendants, was working in said coal mine, at the said place known as room 13, mine No. 3, second east entry, it was then and there his duty, as a servant of the said defendants, to go into said room No. 13 for the purpose of drawing or removing pillar No. 13, said pillar then and there being situated and located between what was known as room No. 13 and room No. 11, said operation of removing said pillar No. 13 being known and spoken of as 'drawing the pillar,' and the said room No. 13, the place where this plaintiff was and was about to work and was working, was unsafe by reason of insufficient timbering and want of timbering, and that by reason of the lack of timbering of said room 13 the rocks directly above the head of this plaintiff in said room 13, where said plaintiff was working, were loose and liable to fall down and crush this plaintiff at any time.

"(8) That plaintiff further says that, on or about the said 23d day of December, 1908, where he was so in and working in said room No. 13 in said unsafe and dangerous condition, a large quantity of rock weighing many tons fell upon this plaintiff, which said large quantity of rock had been negligently left in a loose, dangerous condition by reason of want of timbering, as hereinbefore set forth, and the said defendants, by causing the said rocks to fall upon this plaintiff, thereby crushed and mashed and otherwise injured said plaintiff's right hand and arm, so that it became necessary for this plaintiff to have a portion of his said right hand amputated, and that by reason of said injury so negligently done and inflicted by the said defendants this plaintiff's said right hand has been permanently injured and rendered absolutely useless for the rest of his natural life."

The defendants answered jointly by a general denial of negligence on their part, with allegations of assumption of risk and contributory negligence on the part of plaintiff. The trial resulted in a verdict for plaintiff for $10,000. From the judgment entered thereon, and an order denying their motion for a new trial, defendants have appealed.

1. At the commencement of the trial, defendants objected to the introduction of evidence, on the ground that the complaint fails to state a cause of action. It is argued that, while it is alleged that a large quantity of rock fell upon the plaintiff and injured him, the cause of its fall is not alleged. A complaint must contain a statement of facts constituting the cause of action, in ordinary and concise language. Rev. Codes, § 6532. The rule applicable to determine its effect, however, is that "its allegations must be liberally construed, with a view to substantial justice between the parties." Section 6566. This rule does not permit the reading into the pleading of a statement of a necessary, substantial fact which has been omitted, so as to make it state a cause of action where none is stated ( Conrad Nat. Bank v. Great Northern Ry. Co., 24 Mont. 178, 61 P. 1): but it does require that whatever is necessarily implied by a statement directly made, or is reasonably to be inferred therefrom, is to be taken as directly averred. County of Silver Bow v. Davies, 40 Mont. 418, 107 P. 81; Phillips on Code Pleading, 352; Baylies on Code Pleading, 49, 102; 31 Cyc. 80. The complaint is not clear and direct in its statements; but we think that it is sufficient to meet the test prescribed by the statute.

It is elementary that the averments of fact must be sufficiently specific to show the causal connection between the omission of duty by the defendant and the injury complained of; that is the gist of the action. Fearon v. Mullins, 35 Mont. 232, 88 P. 794; Thompson on Negligence, § 7467. But a pleading comes within the rule when from the facts stated the causal connection must necessarily be inferred. There is no specific allegation that the omission to timber caused the rock to fall; yet this is a necessary inference from the allegations of the omission, the dangerous condition resulting from it, which was known to defendants, and the consequent fall, causing the injury. Besides, in paragraph 8 is found the allegation that "the said defendants, by causing the said rocks to fall upon this plaintiff," etc. This ill-expressed statement, construed with the preceding allegations, and given the meaning which the pleader evidently intended to express, viz., that the omission to timber was the cause of the fall, renders the pleading sufficiently explicit.

It is also argued that the complaint is insufficient, because it is not alleged explicitly in paragraph 6 at what point in the mine the condition of insufficient timbering existed. But, when this paragraph is read in connection with paragraphs 4 and 7, it is clear that it can refer only to the place where plaintiff was working in room 13, where he was injured, and the defendants' knowledge as to the conditions there. The fault to be found with this feature of the pleading is that it is indefinite, rather than insufficient. This objection to it should have been made by special demurrer.

2. Access to defendant company's mine is gained through an opening driven in on the slope of the vein, called the main entry. At right angles in both directions from this are driven side entries, which are connected at some distance from the main entry by a back entry parallel with the main entry. From the side entries, and parallel with the main entry, are driven rooms. The coal is first all removed except pillars between the rooms, left standing to support the roof. The rooms are numbered, and the pillars take the numbers of the rooms. The roof over the spaces from which the coal has been removed is supported by props of timber. When the vein has been exhausted, the pillars are taken out, and that portion of the mine is abandoned. The part of the pillar farthest from the entry is called the "face"; the side of the pillar is called the "rib"; and the portion of the room on that side is called the "gob." The timber props are placed in the gob in lines parallel with the rib, the line next to the rib just far enough away to permit a car track to be laid alongside of the rib. The plaintiff and his two sons were employed in mining, or "drawing," pillars and loading the coal into cars. As they removed the coal, beginning at the face, it was their duty to put in other timber supports to prevent falls of rock during the work. Timbers were furnished for this purpose by the company, through the superintendent or foreman, upon requests made to the motorman in charge of the cars. Prior to December 20th, plaintiff and his two sons had been drawing pillar 9. It had appeared from the testimony of the plaintiff that Fleming, the foreman, having gone to pillar 9 and found the drawing about finished, told the plaintiff, when he had finished it, to begin work on pillar 13, stating that he would have the car track put in room 13 at once; that the work having been finished on the 22d, plaintiff ordered timbers for props to be sent into room 13; that on the morning of the 23d he and his sons went into the room in pursuance of Fleming's order to begin work, but found no timbers; that they began to prepare places for setting the timbers necessary to be put in when they began to take out coal, and that while they were so engaged a heavy fall of rock, coming from a point near the face, caught plaintiff and injured him. Robert Allen, a son, gave substantially the same testimony. During the course of his examination in chief, he gave this testimony: "Q. Now do you know whether the requests or orders for props or timbers for your use...