Bauschka v. Western Coal & Mining Company
| Decision Date | 13 June 1910 |
| Citation | 129 S.W. 1095,95 Ark. 477 |
| Parties | BAUSCHKA v. WESTERN COAL & MINING COMPANY |
| Court | Arkansas Supreme Court |
Appeal from Sebastian Circuit Court, Greenwood District; Daniel Hon Judge; reversed.
Judgment reversed and cause remanded.
Robt. A. Rowe and Rowe & Rowe, for appellant.
Appellee should have kept timbers at the mine for use as props. Kirby's Dig., § 5352.
Ira D Oglesby, for appellee.
The judges of this court will not explore the record to discover errors of the trial court. 90 Ark. 393; 89 Ark. 43; 83 Ark 359; 88 Ark. 450; 75 Ark. 571; 87 Ark. 351; 46 Ark. 69; 59 Ark. 257; 75 Ark. 347; 55 Ark. 547.
Plaintiff, John Bauschka, was employed by the defendant, Western Coal & Mining Company, as a shot firer in its coal mine at Jenny Lind, Sebastian County, Arkansas, and was injured by falling rock while in the discharge of his duties. He was passing along the entry or air course in the mine, and a large rock fell from the roof and struck him down, severely injuring him. He sues to recover damages for the injury thus received, alleging that the same was caused by negligence of the company in failing to exercise ordinary care to provide a reasonably safe place for him to work, and also in failing to furnish props with which to make safe the roof of the air course.
Defendant in its answer denied that plaintiff had received his injury on account of its negligence, and pleaded assumption of risk and contributory negligence on the part of plaintiff.
A trial before jury resulted in a verdict in favor of defendant, and the plaintiff appealed.
Plaintiff's duties were to go into the mine at the close of the day, after the miners quit work, and to go from room to room and fire the shots put in by the miners, to break down coal for the next day's work. He was passing along the air course when the rock fell on him. It was a large rock, five or six feet long and six feet wide. He was alone when it fell and weighed him down, but succeeded with great difficulty in getting himself from beneath it. He states that, while lying beneath the rock, he observed another large rock hanging loose, and that this frightened him into renewed effort and strength to get from under it. After he had extricated himself and gotten out of further danger, his groans and cries attracted the attention of another shot firer, who carried him out of the mine.
The testimony tends to show that the roof was in a dangerous condition and needed propping, though it is not shown when the rock which fell became loosened or gave evidence of being loose. The kind of roof is what the miners call a draw-slate roof, or shaly roof, and there was evidence to the effect that such a roof is dangerous unless propped. One of the workers in the mine testified that, two days before plaintiff's injury occurred, he saw a small rock fall from this roof about ten feet from the place where the large rock fell which injured plaintiff. It appears that the entries and air courses are mined out by the miners, and that they constitute the working place of the miners so engaged so long as they are engaged in taking out coal, but that thereafter it is the duty of the company as employer to keep the place safe as a common passway for the use of all employees whose duties call them there.
During the course of the examination of one of the witnesses, the plaintiff offered to prove that one of the miners, while working in the air course, called for timbers with which to prop the roof, and that the same were not furnished. After the question was propounded and ruled out by the court, plaintiff's counsel made the offer in the following language: "We also offer to show that there was no timber there to prop it." The court then made the following ruling thereon: "You may show the condition of the mine, but the company is not bound by any demands this man made, unless you connect it with the plaintiff." Plaintiff saved exceptions to the ruling. He again offered to prove by another witness that the latter "was on a committee of the local union, and called on the company for props and notified the company that there were no props there to prop that roof." The court refused to allow it, and exceptions were saved.
The language in which the ruling of the court is couched indicates that it was necessary, in order to make the testimony competent, to connect plaintiff with the demand for props by showing that he caused the demand to be made, or was relying on the company to furnish the props. This is not correct. It was competent to show that timbers were demanded by any one for use in propping this particular portion of the roof. This for the purpose of showing notice to the company of the dangerous condition of the roof. It was the duty of the company, even if props had not been demanded, to exercise ordinary care to discover the condition of the roof of the air course, and to keep same in a reasonably safe...
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