Balen v. Colfax Consolidated Coal Co.
| Decision Date | 27 June 1918 |
| Docket Number | 31905 |
| Citation | 168 N.W. 246,183 Iowa 1198 |
| Parties | SAMUEL BALEN, Appellee, v. COLFAX CONSOLIDATED COAL COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Jasper District Court.--HENRY SILWOLD, Judge.
ACTION to recover damages consequent on personal injury in defendant's mine, resulted in judgment as prayed. The defendant appeals.
Affirmed.
R. and F. G. Ryan and J. E. Cross, for appellant.
John T Clarkson, for appellee.
The defendant operates a coal mine, in which plaintiff was employed as a coal digger. The shaft extended down about 180 feet, and in it were two cages, operated by machinery, one ascending as the other descended. From the shaft, entries had been driven, and rooms turned off of these. Empty cars were taken from the cages on the north side, and loaded cars run on at the south side of the shaft. An entry extended 20 or 25 feet south of the shaft, and thence entries had been driven eastward and westward, and these were made use of as motor haulage ways,--that is, through these, cars were hauled by electric motors. From the south entry, there was a slight ascent to the westward, for a distance of about 50 feet; and beyond, the grade was descending. At the highest point, or apex, was what was denominated a "motor hole." As the motor reached this point, it was detached and run in this "motor hole," and the trip of loaded cars allowed to move on by their own momentum, until an employe, located a little farther on, stopped the cars, by putting sprags into the wheels. When the cager required them to run in the cage, they were permitted to move on around the corner to the shaft. Ordinarily, the hoisting of coal ceased at 4:15 o'clock in the afternoon, and the miners were then raised to the surface by the cages, about ten at a time. Shortly before this, the miners and their helpers collected in a sort of waiting room, a short stub entry, south of the shaft, and near where the entry turned westward, and there waited until the whistle blew, signaling that hoisting coal had ceased. In the afternoon of August 17, 1914, plaintiff arrived at the waiting room at about 4:10 o'clock, and remained there until the whistle blew. According to custom the miners were assigned numbers as they arrived, and the cager called and loaded ten at a time, in the order of such numbers, thus: from one to ten, inclusive, in the first load; the next ten in the second load; and so on. When the whistle blew, plaintiff, with others, left the waiting room and went over nearer the shaft, as the evidence tended to show was customary; and, when 12 or 14 feet therefrom, waiting for his number, 18, to be called, a trip of cars coming from the west entry and on north ran against him and forced him into the "sump," where the cage coming down rested on him, causing the injuries complained of. It appears that a trip of cars was hauled from the west, and did not have enough momentum to carry it over the point, or apex, when the motorman detached the motor and ran it in the motor hole. A second trip coming up, the motorman was unable to move his cars forward far enough to allow some mules worked in the mine to pass, in going to the barn; and, to afford a passageway for the mules, the second motorman attached his motor to the trip of cars ahead, pushing it over the apex and hauling those behind. As the first trip went over, four or five of the front cars became uncoupled; and, as no one was there to sprag the wheels, these moved east and north toward the shaft where the collision occurred, as stated. Plaintiff did not observe the approach of the cars until someone shouted, "The trip is loose," when he stepped to the side of the track, but, finding the space too narrow, attempted to cross to the other side, and in so doing was struck by the front car and thrown into the "sump." Recovery was sought for damages in loss of wages, expenses for medical services, and for mental and physical pain suffered and which will be suffered in the future, it being alleged that the injuries occurred "while plaintiff was an employe of defendant, engaged in the work of mining coal * * * engaged in the performance of his work in the pit sump at the bottom of the shaft * * * by reason of a loaded trip breaking and running into said sump where plaintiff was located." The petition also alleged that defendant had rejected the "compensation law" in the manner required by the statute and by amendment thereto; alleged that plaintiff was injured while waiting for his turn to be hoisted to the surface, and that he "had not given any notice as required or contemplated by the statutes with reference to the rejection of what is known as the Compensation Law, enacted by the thirty-fifth general assembly; that is to say, the plaintiff alleges that he had not given a written notice rejecting the law."
The defendant demurred, on the grounds: (1) That the court was without jurisdiction; (2) that, as plaintiff had not rejected the compensation law, he may not recover under its provisions; and (3) that the petition neither alleged negligence on the part of defendant nor that plaintiff was without fault. The demurrer was overruled, and defendant pleaded the first two grounds of demurrer in his answer, and also alleged its freedom from negligence, and that plaintiff, by want of care on his part, contributed to his injury. The evidence tended to establish the facts as alleged, and the court submitted the cause to the jury on the theory that, although plaintiff, by not rejecting, is deemed to have accepted the Employers' Compensation Act, he might recover under the common law, as modified by Section 2477-m of the Code Supplement, 1913; and verdict was returned and judgment was entered for plaintiff.
I. Appellant contends that Chapter 8 of Title XII of Code Supplement, 1913, as amended by Chapter 270 of the Acts of the Thirty-seventh General Assembly, provides a special and exclusive remedy in cases like this, and that none other may be resorted to. This is true where neither employer nor employe rejects the terms, conditions, and provisions of the act, in the manner prescribed. But other situations arise and are provided for, (1) where the employer only rejects, (2) where the employe alone rejects, and (3) where both reject. Section 2477-m of the Code Supplement, 1913, deals with the first of these,--that is where the employer rejects and the employe accepts,--and declares that, though the employer rejects the terms, conditions, and provisions of the act, he
Section 2477-m2 relates to the second situation,...
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