American Coal Co. v. De Wese

• Citation: 30 F.2d 349
• Decision Date: 14 January 1929
• Docket Number: No. 2765.,2765.
• Parties: AMERICAN COAL CO. OF ALLEGANY COUNTY v. DE WESE et al.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

30 F.2d 349 (1929)

AMERICAN COAL CO. OF ALLEGANY COUNTY v. DE WESE et al.

No. 2765.

Circuit Court of Appeals, Fourth Circuit.

January 14, 1929.

George Richardson, Jr., of Bluefield, W. Va., for appellant.

Russell S. Ritz, of Bluefield, W. Va. (John R. Pendleton, of Princeton, W. Va., on the brief), for appellees.

Before WADDILL, PARKER, and NORTHCOTT, Circuit Judges.

NORTHCOTT, Circuit Judge.

The appellant is a New Jersey corporation duly authorized to do business in the state of West Virginia. It owns certain leaseholds in Mercer county, W. Va., acquired in the year 1922, by deed of conveyance from American Coal Company of Allegany County, a West Virginia corporation. The two companies had the same superintendent, tipple foreman, and other officers. The company carried on a coal mining operation in said county, and as had been done by the former owner, disposed of the refuse from its mine by dumping it from its tipple into a ravine or hollow. The material thus dumped consisted of slate, bone, and other impurities taken from the coal at the tipple, and ranged in size from lumps approximately 12 inches down to fine particles that came out of the washer.

This refuse was dumped at the top of a ridge, and permitted to roll down the side of the hill into the hollow or ravine below, until the refuse or "gob" pile extended clear across the ravine and began to fill it. There was a natural drain or watercourse down this ravine draining a watershed, as to the area of which the testimony is conflicting; its extent being placed by some witnesses at 82O acres, and by others at 22.3 acres.

It was testified that there was a spring in this hollow, from which there was some flow most of the time, if not all the time. That there was a natural watercourse running down the ravine past the refuse pile was admitted at the trial of the case.

No provision whatever was made for drainage under this pile of waste material. As the dumping continued, the waste pile grew larger, and the water that at first ran by or percolated through the pile became more and more obstructed, and began to accumulate or dam up behind the pile, but to no great extent.

A considerable part of the material in the waste pile was inflammable, and for a number of years a fire had been burning or at least smoldering in it, a fact known to the officials of the coal company. No effort had been made to extinguish the fire.

The waste pile extended across the ravine, a distance of approximately 305 feet, and extended up and down the ravine a considerable distance.

Several years before the happening complained of, the company had erected two houses, about 650 feet, by direction, below the waste pile; the houses being down the hollow, and considerably lower, in altitude, than the bottom of the waste pile. A road ran between the waste pile and the houses, the road having a drainpipe under it for the passage of water. The houses were rented to two employÈs of the company, S. C. Vest and Toy De Wese, and were occupied by these employÈs and their families.

On the night of June 8, and the morning of June 9, 1924, an extremely hard rain fell in the vicinity of the mine. The testimony as to this rain was conflicting, some witnesses testifying that it was unprecedented in volume, others, while saying that it was unusually heavy, testifying that they had known rains equally as heavy in the same neighborhood. There was, in any event, an extremely heavy volume of rain. Following this rain the water draining from the hillside above accumulated in the hollow at the point where the waste material was dumped, until it backed up the ravine for a distance of about 150 feet. The pool or pond thus formed was 8 feet deep at the deepest point.

Because of the weight of this accumulation of water, accelerated by an explosion that took place when the water came in contact with the fire in the pile, the waste pile started to slide down the hollow, and a large mass of the waste covered the house occupied by S. C. Vest, in which, at the time, were the wife and child of S. C. Vest, the wife and two children of Toy De Wese, and Fletcher De Wese and his wife, killing all seven of the occupants of the house.

An action was brought against the appellant by the personal representative of each of the seven persons killed, in the circuit court of Mercer county, W. Va., and these actions were removed to the District Court of the United States for the Southern District of West Virginia. On the trial a stipulation was entered into that the seven cases should be tried together before one jury, the jury to render separate verdicts in each case. The trial resulted in a verdict by the jury for the plaintiff in each case in the sum of $6,000, and judgment was given the plaintiffs on the verdict by the judge below, from which action this appeal was taken.

There are twenty-four assignments of error; the first being that the court erred in not permitting counsel for appellant, defendant below and here referred to as defendant, to ask Toy De Wese if he was married again. Just what relevancy there was in this question, we fail to see.

The second, third, fourth, and fifth assignments relate to the refusal of the court to permit defendant to introduce evidence showing that the method of dumping the waste material in its gob pile was considered a safe and an approved method, and was in accord with a practice commonly followed in the coal field in which defendant's mine was located; that there was nothing in the experience of operators in that field to suggest danger in the way the waste was piled; and that the porous character of the waste material would of itself admit of drainage sufficient to carry off the water reasonably expected to gather in the hollow from ordinary rainfall.

On these questions we think the court was right in excluding the testimony offered. In the light of the admitted physical facts that existed in connection with the waste pile, it seems clear that usage and custom, with regard to other waste piles built under different or even similar conditions, no matter how well established, could not excuse the defendant from negligence in the way in which the waste pile was built up. The damming and obstructing of a natural watercourse, the resultant impounding of the water, permitting a fire to burn in the waste pile for a number of years, thereby adding to an already obviously dangerous situation the peril of possible explosion, the renting of houses obviously not safe, all go to make improper the introduction of evidence as to usage and custom in the building, at coal mines, of waste piles generally.

"A negligent act, clearly shown to be such, cannot be justified on the ground of custom or usage, and evidence of such custom or usage is not usually admissible for that purpose." Thompson on the Law of Negligence, ß 7882.

"The broad rule has often been asserted that usage and custom do not justify negligence, and obviously the fact that the defendant has been habitually careless and asserts a usage to be exempt from the legal consequences of his negligence is of no avail. Where the usage or custom is invalid by reason of its unreasonableness, unlawfulness or the like, and is productive of injury, the generality of the custom cannot in a given case in any degree excuse or justify the act." 27 R. C. L. 194.

The principle that custom and usage cannot justify negligence has been expressly adopted by the West Virginia courts. Pinkney v. Kanawha Valley Bank, 68 W. Va. 254, 69 S. E. 1012, 32 L. R. A. (N. S.) 987, Ann. Cas. 1912B, 115.

"As a general rule it may be said that whenever the law condemns an act as negligent, evidence of a custom or usage to do such act is not admissible to show that the act was not negligent." 29 Am. & Eng. Encyc. of Law 418, quoted approvingly in Schaffner v. National Supply Co., 80 W. Va. 111, 92 S. E. 580.

See, also, Thompson v. Boston & M. R. Co., 153 Mass. 391, 26 N. E. 1070; Cement Co. v. Seal, 110 Va. 484, 66 S. E. 75; Navigation Co. v. Aitken, 196 U. S. 589, 25 S. Ct. 317, 49 L. Ed. 610.

"Expert evidence touching matters of common knowledge is not admissible." Virginia Iron, etc., Co. v. Tomlinson, 104 Va. 249, 51 S. E. 362.

"Expert testimony cannot be received either to prove, or to disprove, those things which the law supposes to lie within the common experience and common education." Rogers on Expert Testimony (2d Ed.) ß 8; 1 Wharton on Evidence, ß 436; Johnston v. Mack Mfg. Co., 65 W. Va. 544, 64 S. E. 841, 24 L. R. A....