Blazenic v. Iowa & W. Coal Co.

• Decision Date: 06 October 1897
• Citation: 102 Iowa 706,72 N.W. 292
• Court: Iowa Supreme Court
• Parties: BLAZENIC v. IOWA & W. COAL CO.

102 Iowa 706

72 N.W. 292

BLAZENIC

v.IOWA & W. COAL CO.

Supreme Court of Iowa.

Oct. 6, 1897.

Appeal from district court, Monroe county; M. A. Roberts, Judge.

The plaintiff was an employé in the defendant company's mine, engaged in mining coal. While working in the mine in August, 1895, he was injured by slate falling from the roof of the mine, and this action is to recover damages sustained by the injury. The petition charges that while plaintiff was wheeling coal through what is known as “Second West Entry” there was a fall of slate from the roof of the entry, by which he was injured. It is charged that the injury was in consequence of defendant's negligence in failing to properly support the roof of said entry with timbers or otherwise, there being no support of any kind, and that defendant well knew of the dangerous condition of the entry, and had been notified of it. The answer was a general denial. A jury returned a verdict for plaintiff for $550, and from a judgment thereon the defendant appealed. Affirmed.J. R. Sturdevant and T. B. Perry, for appellant.

L. T. Richmond and George D. Porter, for appellee.

GRANGER, J.

1. In the statement of facts it appears that the negligence as charged consisted in failing to properly support the roof of the entry with timbers or otherwise, there being no support of any kind. The petition contained the further averment that defendant had knowledge of the dangerous condition of the roof. The court, in its instructions, permitted the fact of negligence to be found if the roof was actually in a dangerous condition, and the defendant knew it, or by the exercise of ordinary care would have known it. It is urged that the instructions are erroneous because of the latter provision, that a failure to exercise ordinary care to know of the condition of the roof would be negligence. We do not think the averment as to actual knowledge has the effect of preventing proof of negligence in any other way. The averment as to negligence was complete without the statement as to knowledge, and under it the rule of the instruction would have been proper. The effect of the averment as to knowledge is not to negative the existence of negligence because of other facts. It is not inconsistent with the fact of negligence because of the danger existing for such a time as to raise a presumption of knowledge. The difference is only that between actual and presumptive knowledge, and the fact that one is averred does not prohibit a showing of negligence because of the other.

2. One McDowell was a miner in the employ of the defendant, and working in a room adjoining the entry where it is claimed the slate fell and injured plaintiff. It is urged that the evidence shows that the slate fell in McDowell's room, and not in the entry, because of which the verdict is contrary to the evidence. The court instructed that, unless the slate fell from the roof of the entry, there could be no recovery. It is true, there is evidence to the effect that the fall of slate was in McDowell's room, but there is also evidence that it fell in the entry. It is likely true that it fell in both places. The jury must have found that it did fall in the entry, and injure the plaintiff, and with that finding we are concluded, in view of the evidence.

3. It is urged that the evidence shows the plaintiff guilty of contributory negligence. This conclusion is based on the fact that the plaintiff, as a witness, testified that he paid no attention whatever to the condition of the roof in the entry; that he did not look at it, or think about it. There is no claim that, with knowledge of the danger, he carelessly exposed himself. It is simply a claim that he made no attempt to inform himself of the actual condition of the roof. It will be remembered that the entry was not the place where he was mining, so that he was in any sense charged with its making or keeping. It was a place provided for the workmen. In Corson v. Coal Co. (Iowa) 70 N. W. 185, we considered the question of the obligation of a miner as to looking to the safety of such an entry, holding that he was under no such obligation. In this case, however, the court instructed that the plaintiff was bound to use ordinary care to know if the entry was dangerous. The following is the instruction: “Seventh....