Carnego v. Crescent Coal Co.
| Decision Date | 24 October 1913 |
| Citation | 143 N.W. 550,163 Iowa 194 |
| Parties | JOHN CARNEGO, JR., Administrator of Estate of Frank Carnego, deceased, v. CRESCENT COAL COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Mahaska District Court.--HON. K. E. WILCOCKSON, Judge.
ACTION for damages resulted in a judgment against defendant, from which it appeals. Affirmed.
Affirmed.
Burrell & Devitt, and John T. Clarkson, for appellant.
McCoy & McCoy and S. V. Reynolds, for appellee.
The deceased was a miner eighteen years of age. He was killed on May 12, 1911, by the fall of slate estimated to have been eight or nine feet wide by nine to fifteen feet long, ten or twelve inches thick, from the roof of the seventh west entry of the defendant's coal mine No. 6, at the point where the cars were switched to room No. 10. He and his father had been mining in this room three months, but, during the two weeks previous, his brother, Mike Carnego, Jr., and George Katko had been working with them; the four dividing earnings when received. This entry off the back south entry had been driven about fifty-eight feet and then turned in a northerly direction into room No. 10. The room after being driven had been widened to about twenty feet, and the persons mentioned were engaged in robbing the pillar between it and room No. 9. According to their testimony, they had worked at this about a week and had "just cracked through the pillar." The pillar between this room and room No. 11 had not been removed, and according to the testimony of Michael Carnego Jr., none of the other pillars in that part of the mine had been disturbed. Several witnesses testified in behalf of plaintiff that it was the custom and usage of the company to inspect the roof of the entries and to timber and repair the same, and that this duty was being performed by two of its employees, Smith and Pevlik, at and for some time prior to the accident. On the other hand, the superintendent of the mine testified that:
After we ceased prosecuting the entries forward and the rooms, then these miners would start to pull the pillars back. . . . The pillars had been taken out back within twenty-four feet of the fall of slate. I measured it. Forty feet of the pillars had been taken out on one side and twenty-five feet on the other side. . . . Room No. 10 had been excavated and room No. 11 was excavated and pillars were standing between 10 and 11. The coal was all taken out of 8 and 9 clear through that entry more than three hundred feet. They were driven in about ninety feet.
He also testified that he had been in the room four days before the accident; that everything looked "all right then"; and that, upon entering it after the accident, he noticed that:
She was squeezing, squeezing the small pillars that were left right down into the bottom, and 'busting' them and carrying right down the entry. The entries were going to a raise of 15 degrees, and the weight coming on would naturally push it down the hill, and it would crush and smash one pillar, and as soon as it would smash that pillar it would ride over onto the other and smash it down. It was extending over when I examined it within an hour or two after the boy was injured. The coal had the appearance of being crushed or crumbled. I could hear the coal cracking. That was on account of the weight going onto the coal. We sometimes call it a squeeze or break. . . . This condition is caused by taking out the coal, taking out all the supports from under it. . . . It fell tight on Tuesday or Wednesday; . . . completely caved in. . . . It fell in ninety feet down the entry toward the shaft. . . . These men were engaged in pulling the two entry pillars here, one on each side of the entry, the one between room No. 9 and this one here; that would be on each side of the seventh west entry where it had turned in a northerly direction. They were working on the outside corner of the outside entry stump, and the entry stump is opposite the place where it is claimed that Frank Carnego lost his life. It was the custom and usage of coal miners in May, 1911, in mine No. 6, before that time, that the miner when he went in the mine to sound the places from out where he stood to change his clothes and started in to go to work. He would sound that place right up into the working place. The miner's working place was not confined exclusively to the place just where he digs and loads coal in accordance with the custom and usage of mining.
Two other witnesses testified that, according to custom and usage, the miners took care of all of the roof from the place or switch where they get cars to the face of the coal where they are at work when robbing the pillars.
As said, the men associated with deceased testified that they were working at the pillar between rooms 9 and 10, had been removing no other, and that there was no "squeezing" or breaking of the roof generally prior to the fall of slate at the switch. Whether shooting off the powder at the face of the pillar where the miners were loading coal would affect the roof at the switch was in dispute, but there was no controversy as to the duty of the miners to take the cars at that place. The deceased had heard the approach of Roberts, the driver, with cars and at the instance of his brother left the face of the pillar for the switch and as he reached that point was crushed by the falling slate.
I. The main controversy was and is whether the inspection and repair of the roof of the entry where the slate fell devolved upon the miners or upon the company. The evidence bearing upon this issue was in conflict, and no amount of minimizing of the testimony introduced on either side by counsel can obviate this conclusion. Several witnesses testified that it was the custom and usage of the mine for the company to inspect and repair the roof of the entry. The testimony was directed to the portion of the entry in controversy, for the witnesses swore the miners had nothing to do with the entry, and appellant is mistaken in saying that it fell short of disclosing what part of the roof of the entry it was required to inspect. On the other hand, the superintendent testified in substance that it was the duty of the miner to inspect the roof from where he changed his clothes to the face of the coal where he worked. He was corroborated by other witnesses who said this duty of inspection devolved upon the miner from the switch to the face of the coal where he was employed, especially when pillars were being removed. Plainly enough the issue was for the jury.
II. Nor is there anything in the statute which arbitrarily casts the burden of inspection and repair of the entry on the miners. Of course it was their duty to securely prop or support the roof or entries under their control. Section 2491, Code. But was the entry at the point of the accident under their control? As said, the evidence on this point was in conflict. Section 44 of chapter 106 of the Thirty-fourth General Assembly declares that:
This has reference to the place where the employee is "to mine or load coal or other mineral" and not to the entry through which he reaches such place or brings his tools or the car to use or load. Whether the roof of the entry shall be inspected and repaired by the employer or the miner depends upon who is in control, and, if the jury found that according to custom and usage the defendant's employees, Smith and Pevlik, were required to repair the entry where the switch was and were then in charge of that work, it necessarily follows that the defendant, if these men failed to exercise ordinary care therein, and the injury resulted from such failure, was negligent. Thayer v. Smoky Hollow Coal Co., 121 Iowa 121, 96 N.W. 718; Taylor v. Star Coal Co., 110 Iowa 40, 81 N.W. 249; Cotton v. Coal Mining Co., 147 Iowa 427, 123 N.W. 381.
III. Michael Carnego, Jr., testified that, about two weeks before the accident, James Smith sounded the roof at the switch in his presence and that it sounded loose and heavy and that he then said "he would have it fixed right away immediately." The witness swore that he "thought that they would fix it." Smith gave a different version of the affair, saying that both he and Carnego were considering the whole thing as not in good condition but...
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