Calumet Fuel Co. v. Rossi
| Decision Date | 07 June 1915 |
| Docket Number | 8097. |
| Citation | 60 Colo. 87,151 P. 935 |
| Parties | CALUMET FUEL CO. v. ROSSI. |
| Court | Colorado Supreme Court |
Rehearing Denied Oct. 4, 1915.
Error to District Court, La Plata County; William Searcy, Judge.
Action by Peter Rossi against the Calumet Fuel Company. Judgment for plaintiff, and defendant brings error. Reversed.
McCloskey & Moody, of Durango, for plaintiff in error.
Perkins & Main, of Durango, for defendant in error.
The defendant in error, plaintiff below, was injured in the coal mine of plaintiff in error by the falling of a rock from the roof of the room in which he was working. He had been working in this room for several months, having driven the room about 130 feet from the breast of the room as it was when he began work therein. For a month or so before the accident he had been 'pulling pillars,' or, in other words, removing the coal which formed a partition some 20 feet thick between this room and one adjoining it. There was a track from the entrance to, or nearly to, the breast, which was used for the hauling out of the coal, and on each side of this track was a row of props supporting the roof. The removing of this partition of coal which helped to support the roof was preparatory to an abandonment of the room, and the pillar had been drawn for 150 feet or more, and the track taken up for 15 or 20 feet from its inner terminus. Plaintiff testified that the pillar and been drawn to a point about 15 feet from where he was working on the day of his injury and that at that point the pillar had not been cut through by 5 or 6 feet.
It is in such cases expected that the caving in of the roof will follow the pulling of the pillars, and the pressure on the props increases as the 'retreat' proceeds; the roof caving from time to time.
Plaintiff claims, and the testimony tends to show, that he was injured while on the track above mentioned, at a point about 10 feet from the pillar where he had been working; he having ceased work and started for the entrance to the room, following the car track. There are some differences in the testimony as to the location of the hole in the roof whence the stone fell but the testimony of plaintiff that he was hit while on the track, and of his witnesses that his injured leg was on one of the rails of the track when found, is not directly contradicted.
Plaintiff's theory of the case is that the track was a 'traveling way' which the defendant was bound to keep in a safe condition, and that the fall of the stone shows a neglect of that duty. One of the defenses pleaded was that the plaintiff's own work was constantly changing the conditions of the place in which he was working, including that part of the room occupied by the track. The defendant therefore contends that the rule which requires the employer to furnish the employé a safe place in which to work does not apply.
That the rule above mentioned does not generally apply to such work as the plaintiff was doing, when the situation is constantly changing and the employé is himself making the place for working, is well settled in this state. Northern Coal Co. v. Allera, 46 Colo. 224, 104 P. 197; Creede United Mines Co. v. Hawman, 23 Colo.App. 125, 127 P. 924.
If the plaintiff is entitled to recover, it must be because he was injured on the track in question, and that track must be a passageway which falls within the class of ways which the mine operator is required to keep in a reasonably safe condition.
In addition to its claim that the rule last mentioned applied in this case, and so relieved it from liability, the defendant introduced testimony tending to show a general custom, known to the plaintiff, under which miners assume the duty of keeping safe the rooms in which they work. It took issue with plaintiff upon the proposition that the track in the room is exempt from the rule that miners assume the risk of the place where they work in actual mining. In the absence of a positive...
To continue reading
Request your trial
- Dawley v. Dawley's Estate
-
Calumet Fuel Co. v. Rossi
...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, the judgment was reversed and the cause remanded for another hearing. At the second trial plaintiff again recovered judgment, and it is ......