Braddich v. Phillips Coal Co.
| Decision Date | 12 November 1912 |
| Citation | 138 N.W. 406,159 Iowa 402 |
| Parties | MIKE BRADDICH v. PHILLIPS COAL COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Dallas District Court.--HON. W. H. FAHEY, Judge.
SUIT to recover damages for a personal injury. Verdict and judgment for the plaintiff. The defendant appeals.
Affirmed.
Guernsey Parker & Miller and C. Woodbridge, for appellant.
Thos A. Cheshire and H. L. Manion, for appellee.
The facts, as gathered from briefs of counsel and from the record, are substantially as follows: The plaintiff is an Austrian by birth, and thirty-six years of age. He came to America from Austria six years before he was injured, but at the time of his injury he was unable to speak fluently or to understand fully our language. He had worked in coal mines during his residence in this country, all of such work, prior to his work for the defendant, having been done in Pennsylvania, Wyoming, and North Dakota. He commenced work for the defendant eight or nine days before he was injured. The defendant put him to work in a room that had been driven in from the entry about fifteen or twenty feet, and, on the day that he was injured, he had extended the room so that the face of the coal was some distance farther away from the entry. Between the entry and the room where he was at work there was what is called the "neck of the room or entry"; a narrow opening for passage and for hauling coal from the room proper. The defendant company had not put a track from the entry to the plaintiff's room, and, at the time he was injured, he was engaged in loading coal in a car that was standing on the track in the entry at the neck of his room. At the time of his injury, he was in this neck of the room, about four feet from the car that he was loading, and another miner was in the room bringing coal therefrom and throwing it down in the neck of the room near the entry so that plaintiff could load it. Plaintiff was injured by the fall of slate from the roof of this neck. At the time plaintiff began work in this room, the roof that fell upon him was solid and in good condition. Some three or four days afterward, however, some slate fell in the entry, and the plaintiff then sounded the roof in this neck of his room and it then sounded "drummy" and loose. He immediately informed the pit boss of its condition and asked him to cross-timber the roof to prevent the falling of the slate, because it was impossible to hold the slate up with props. To this request the pit boss replied that they did not have any timbers, but that he would cross-timber the roof as soon as they could get the timbers. Two or three days before the accident, the plaintiff told the timberman, who had charge of this entry, of the condition of this roof, and the timberman replied that he could not put timbers up because the company did not have them. The day before the plaintiff was injured, he had another talk with the pit boss about the condition of this roof, and asked the pit boss why he did not put up some cross planks to hold the roof. The pit boss was angry and said to the plaintiff that he knew more about the coal mining business than the plaintiff did, and that he (the pit boss) knew that the place was safe, and he then said to the plaintiff, "You go in and go to work." The plaintiff testified that when the pit boss told him that his superior experience told him that the place was safe, and that it was, in fact, safe, he felt ashamed of himself because he had "been called down," and went to work, because he regarded the pit boss as more experienced in the mining business than himself.
When the plaintiff went to work in this room, the neck thereof had not been opened sufficiently to admit the passage of a mule, and it was a part of the plaintiff's work to increase the depth of the passageway by either removing more of the roof or bottom. There was evidence tending to show that he had sufficiently enlarged this neck for the needed purpose a day or two before the accident by lowering the floor thereof. The plaintiff and one of his witnesses testified that he had not propped the roof of this neck; the plaintiff showing that props would not hold the roof, and that it was the duty of the defendant to cross-timber it. On the other hand, the defendant introduced testimony tending to show that the roof had three or four props under it in the morning of the day that it fell, and that these props had been blown out that forenoon by the plaintiff while blasting the floor loose. Plaintiff, however, and the miner who was working with him on that day, testified that no blasting was done at the time, and that no props were then in the neck of the room. It also appears that the timberman had done some timbering in this neck while plaintiff was at work there, and at his request, but that there was not sufficient cross-timbering to hold the roof.
I. The appellant insists that the plaintiff was guilty of contributory negligence, as a matter of law, and that the court erred in refusing to so direct the jury, and erred in submitting the case to the jury. This contention is based on the following propositions, as stated by appellant in the brief of its counsel:
(a) He knew for several days before the accident that the roof of his room neck was likely to fall, since he testifies it was 'awful badly loose; sounded drummy'; and was so 'heavy' that he claims to have told the pit boss 'it was impossible to prop it.' (b) Knowing this, he continued to work under this roof, knowing it to be wholly unsupported, believing it to be an unsafe place to work, and without attempting himself to support it. (c) After having fired shots in the bottom of his room neck, he returned to work under the roof in question at noon of the day of the accident, without further sounding the roof or without attempting to prop it, notwithstanding warnings, and knowing the roof to be loose and dangerous. (d) The plaintiff was guilty of a misdemeanor, omitting to 'securely prop and support the roof of the room under his control,' at the time of his injury, and hence guilty of contributory negligence as a matter of law. It cannot be argued by plaintiff that there was no causal relation between his criminal omission to prop and secure the roof of his room, since he relies upon an alleged negligent failure of the defendant to do that very thing as the sole basis of his alleged right of recovery. (e) The alleged breach by defendant of the terms of the 'Des Moines Agreement' relative to double-timbering being necessarily known to the plaintiff at and before the time of the accident, so far from excusing plaintiff's gross negligence, was in law and in fact an additional warning to him to avoid the obvious impending danger of working under the unsecured roof, and intensifies, rather than lessens, the degree of the plaintiff's negligence. (f) The alleged assurances of safety by the pit boss and timberman do not afford plaintiff a legal excuse for exposing himself to the danger in question, because (1) they were remote in point of time; (2) they were given under conditions different from those existing at the time of the accident; (3) by persons not shown to have possessed knowledge equal to the knowledge possessed by the plaintiff of the danger he was incurring in working under a roof known by him to be loose, heavy, drummy, wholly unsupported, and unsafe at the time of the accident.
And in support of these several positions the appellant relies upon decisions of this and other courts, to which we shall give further attention later in this opinion. The plaintiff insists that the question whether he was guilty of contributory negligence was one for the determination of the jury, and not for the court, for the following reasons, as stated by his counsel:
(1) The plaintiff was of Austrian birth, and was not very familiar with the English language. The record discloses that he had to have an interpreter when giving evidence in the case at bar. (2) While he had been engaged in the coal mining business for about six years prior to his injury, his experience in mining coal in Iowa and in the mine in which he was employed at the time of his injury was but seven working days. (3) The roof which fell and injured the plaintiff was in need of double or cross-timbering and became in this condition two or three days after the plaintiff began working. (4) When the plaintiff, by sounding the roof learned that it needed double or cross-timbering, he informed the pit boss that he wished some crossbars placed under the roof, and the pit boss told him that they did not have any timbers and would do it as soon as they got them. (5) The day before the plaintiff was hurt, the plaintiff again requested the pit boss to put in some crossplanks, and the pit boss on that day became angry and said he knew more about coal mining business than the plaintiff, and he knew that the place was safe, and he said to the plaintiff, 'You go in and go to work.' (6) When the pit boss told the plaintiff the place was safe, and for him to go in and go to work, the plaintiff was ashamed of himself and thought he would go in and go to work, because, as stated by the plaintiff, he did not want to say anything more to the pit boss because he was more experienced in the mining business than the plaintiff. (7) The pit boss talked to the plaintiff in English. (8) The plaintiff also talked to the timberman, Frank Mikus, and the timberman talked to the plaintiff in the Austrian language, but used a little different dialect from that used by the plaintiff. (9) The plaintiff requested the timberman to double-timber this place when the timberman was sitting in the neck of plaintiff's room. (10) The timberman admits that the plaintiff said to him...
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