Calumet Fuel Co. v. Rossi

• Decision Date: 01 April 1918
• Docket Number: 8843.
• Citation: 65 Colo. 133,173 P. 943
• Court: Colorado Supreme Court
• Parties: CALUMET FUEL CO. v. ROSSI.

173 P. 943

65 Colo. 133

CALUMET FUEL CO. v. ROSSI.

No. 8843.

Supreme Court of Colorado, En Banc.

April 1, 1918

Rehearing Denied July 1, 1918.

Error to District Court, La Plata County; W. N. Searcy, Judge.

Action by Peter Rossi against the Calumet Fuel Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded with directions.

McCloskey & Moody, of Durango, for plaintiff in error.

Perkins & Main and L. M. Perkins, all of Durango, for defendant in error.

BAILEY J.

This case is here for the second time. The opinion on review of the first trial is reported in 60 Colo. 87, 151 P. 935, where the judgment was reversed and the cause remanded for another hearing. At the second trial plaintiff again recovered judgment, and it is that record which is now for consideration. In this opinion the litigants are designated as they were in the court below.

Plaintiff while employed by defendant was injured by the fall of a slab of rock from the roof of a room in a coal mine. The room had been partially excavated by another before being turned over to plaintiff, and a track had been laid in the room for convenience in removing coal. At the time of the accident plaintiff was engaged in what is known as 'pulling pillars,' or removing the coal forming the partition wall between the room where he was at work and an adjoining one. The removal of this supporting pillar was preparatory to the abandonment of the room, as upon the removal of pillars in a room the roof usually falls. The track had been taken up for some distance to save it from being covered by débris, and props, supplied by the company for the purpose, were in place over the remaining track, and at other places where the roof appeared weak and seemed likely to give way.

It is claimed, and there is testimony to support the claim, that plaintiff was injured while on the track, and it is urged that the track was one of the travel ways of the mine, which defendant, under our statute, was bound to keep safe. The theory of the defense is that the track, and the entire room was the working place of the plaintiff, and that conditions therein were constantly changing as a result of the work which plaintiff was doing; that therefore defendant was not responsible for the conditions existing in the room, they being better known to plaintiff than to any one else, as he was directly responsible for bringing about such conditions.

It was definitely determined in the former opinion that the miner is responsible for the safety of the room constructed by himself in the course of his work. The following excerpt from 87 Am.St.Rep. 566, note, was quoted in that opinion with approval:

'This rule that the mine owner is bound to use all reasonable care to render safe the place furnished by him to his employés, is applicable only when the place in which the latter are at work is such that it can be said to be a place 'furnished' by the mine owner. When, therefore, the employes are engaged in making their own place the rule does not apply. Where, for instance, the miners are engaged in cutting down or blasting out the face of a drift it would be entirely unreasonable to demand of the owner that immediately after each blast he make safe the place which the explosion has created. In such case the miners may with reason be said to furnish their own place. The character of the place is continually changing by reason of the work itself. It is, therefore, uniformly held that as to those places which the employé in the progress of the work furnishes for himself, it is his duty and not that of his employé to use reasonable care to render them safe for further prosecution of the work.'

Also the following from Big Hill Coal Co. v. Clutts, 208 F. 524, 125 C.C.A. 526:

'Possibly the law as to the duty of the mine operator to exercise reasonable care to provide the miner a reasonably safe place in which to work may be summed up in this way. The mine operator owes this duty except where it is the reasonable expectation of the parties that the miner himself shall look after his own safety. Generally speaking, such is the expectation where he is working in his [own] room digging coal, and hence the mine operator does not owe him such duty. On the other hand, generally speaking, it is not the reasonable expectation that the miner shall do so as to an entry, and hence there the mine operator does owe him such duty. But where the miner is engaged in driving or assisting in driving the entry, it is the reasonable expectation of the parties, that whilst he is so doing, as to the portion of the entry that is being driven, he shall look after his own safety, and hence the mine operator does not owe him such duty in regard thereto.'

The question as to the responsibility of the miner for the safety of his own room having been...