Carney Coal Company v. Benedict

• Decision Date: 17 February 1913
• Docket Number: 720
• Citation: 21 Wyo. 163,129 P. 1024
• Parties: CARNEY COAL COMPANY v. BENEDICT. [*]
• Court: Wyoming Supreme Court

129 P. 1024

21 Wyo. 163

CARNEY COAL COMPANY v. BENEDICT. ^[*]

No. 720

Supreme Court of Wyoming

February 17, 1913

ERROR to the District Court, Sheridan County, HON. CARROLL H PARMELEE, Judge.

Charles R. Benedict brought the action against the Carney Coal Company to recover for personal injuries received while working for the defendant in its coal mine as a coal miner. A peremptory instruction for the defendant was denied, and there was a verdict and judgment for the plaintiff. The defendant brought error. The material facts are stated in the opinion.

Reversed and remanded.

Enterline & LaFleiche, for plaintiff in error.

It was improper to permit the plaintiff to testify over objection that he believed immediately prior to his injury that the place wherein he was working was safe. Whether or not it was a reasonably safe place was for the jury to decide. The undisputed evidence discloses that the plaintiff was of mature years, of average intelligence, in the possession of all his faculties, and that his injury was caused by a condition made by himself and was so open, patent, obvious and apparent that no experience was required to appreciate the danger. The evidence also establishes that the plaintiff knew of the existence of the danger. Therefore, whether or not he was inexperienced became wholly immaterial. Error was committed in the admission of opinion evidence as to matters which were for the jury alone to decide, and examples of these are found in the questions calling for opinions as to whether the experience required to discover the dangers of mining coal could be acquired by one driving a car in the mine, and the questions asking for the opinion of the witness as to whether it would be necessary for a miner to have either experience or suitable warning or instruction in order to detect the danger of falling coal.

The fact that the lump of coal which fell and injured the plaintiff was liable to fall, appears from the evidence to have been so obvious that any reasonably prudent person would have appreciated the danger, and that danger was so obvious that the case is brought within the authorities denying the right to recover where the risk was obvious and ought to have been fully appreciated by the party injured. (Maki v Coal Co., 187 F. 389, 109 C. C. A. 221; 1 Labatt's Master & Servant, Sec. 238; Simms v. So. Car. R Co., 2 S.E. 486; Bjbjian v. Rubber Co., 41 N.E 265; Hathaway v. Mich. C. R. Co., 16 N.W. 634; Houston &c. R. Co. v. Strycharski, 26 S.W. 253, 642; Findlay v. Foundry Co., 66 N.W. 50; Connolly v. Eldredge, 36 N.E. 469; Yeager v. Burlington &c. R. Co., 61 N.W. 215; Hogle v. Wilson, 31 P. 469; Railsback v. Wayne &c. Co., 38 N.E. 221; Dougherty v Iron & Steel Co., 60 N.W. 274; East Tenn. &c. Co. v. Turvaville, 12 So. 63; Ill. Cent. R. Co. v. Price, 18 So. 415; Kean v. Detroit C. & B. Mills, 33 N.W. 395; Campbell v. Mullen, 60 Ill.App. 497; Vilas v. Vanderbilt, 44 N.Y.S. 267; DeSouza v. Stafford Mills, 30 N.E. 81; Casey V. Paving Co., 47 A. 1128; Cunningham v. Bridge Works, 47 A. 846.) All employment in a coal mine is dangerous and is generally so understood by everyone, whether experienced or not. As to the plaintiff, who was a man of mature years and had worked in the mine, there is no reason for applying the rule which would govern in the case of a minor or a person not in the possession of all his faculties. Notwithstanding plaintiff's testimony, that he did not appreciate the danger, the court should have directed a verdict and not have permitted the jury to speculate upon the question. The admission of plaintiff's testimony to the effect that he did not understand or appreciate the danger, which we contend was error, makes more apparent the error in submitting the case to the jury. (Over v. Mo. K. & T. R. Co., 73 S.W. 535.) It should have been held by the court as a matter of law that the plaintiff was bound to know, appreciate and understand the danger which resulted in his injury. The sole purpose of requiring warning by an employer is to give information of unknown or unappreciated dangers, so that when the servant knows and appreciates the hazards of his employment no warning or instruction is required. (Cudahy Packing Co. v. Marcan, 45 C. C. A. 515.) Not only was the danger obvious, but it was one created by the plaintiff himself, and no warning or instruction is required under such circumstances. (1 Bailey's Pers. Inj., Secs. 298, 301, 304, and cases cited.) The plaintiff was bound to take notice of the ordinary operation of familiar natural laws and govern himself accordingly. (Swanson v. Ry. Co., 70 N.W. 978; Walsh v. Ry. Co., 27 Minn. 367, 8 N.W. 145; Olson v. McMullen, 34 Minn. 94, 24 N.W. 318; Pederson v. Rushford, 41 Minn. 289, 42 N.W. 1063; Quick v. Iron Co., 47 Minn. 361, 50 N.W. 244; Hardy v. Ry. Co., 115 N.W. 8; Thurman v. Copper Co., 108 P. 588; Paule v. Mining Co., (Wis.) 50 N.W. 189; Cole v. Ry. Co., (Wis.) 114 N.W. 84; White on Pers. Inj. in Mines, Sec. 41; 4 Thomp. on Neg., Sec. 4063; Coal Co. v. Barringer, 75 N.E. 900.)

The court erred in refusing instructions "A" and "B" requested by the defendant. The master is not liable for an injury received by reason of change of conditions made by the servant; and that rule is particularly applicable where the danger thus created is obvious and observed by the servant. Instruction "C" requested by the defendant should have been given. It seems to be the universal rule that where a man of mature years and average intelligence solicits a particular employment, he thereby holds himself out to the employer as qualified to perform the task, and the master may assume that he is qualified and experienced. Instructions "F" and "H" requested by the defendant should have been given, as well as instructions "I" and "K." Instruction "K" stated that if the jury should find that the plaintiff, either by himself or in conjunction with his fellow servant, set the blast in the face of the vein in which they were engaged at work, so that the blast cracked and loosened pieces of coal in the vein, and that plaintiff knew, or in the exercise of reasonable care could have known, that detached or loosened pieces of coal were liable to fall after having been so detached and loosened, the plaintiff could not recover. That instruction, we think, stated the law correctly. An instruction given stated to the jury unequivocally as a matter of law that a legal duty rests upon the master to warn and instruct his servant in any event, without mentioning any exception to the rule requiring such warning and instruction. That instruction, which was numbered "3," was, we maintain, error. The trial court attempted by instruction number "4" to define the law respecting open, visible and obvious danger, but the instruction embraced exceptions and qualifications such as to convey an entirely different direction than was warranted by the record in this case. The instruction was confined to dangers which are "visible and obvious to the comprehension of the servant, considering his years, experience and understanding." The other instructions that were given are subject to a similar objection.

Burgess & Kutcher, for defendant in error.

It was proper to permit the plaintiff to testify that he believed that at the time of his injury no danger existed. His testimony as to what he did or did not know and comprehend was competent and admissible. (Stewart v. Copper Co., (Mont.) 111 P. 723.) The fact that the plaintiff created the danger in the progress of the work is true in nearly all cases of this character. The very object of warning and instruction is to enable the servant to avoid the danger which he, himself, creates. Whether the danger was obvious or not was a disputed fact and was properly left to the jury, and by the verdict the jury found that the danger was not open, patent or obvious. The opinion of an experienced coal miner concerning whether one inexperienced could discern whether a large piece of coal, behind which there was a crack, was dangerous, was certainly admissible. (Texas &c. R. Co. v. Douglas, (Tex.) 11 S.W. 333; R. Co. v. Kennedy, 82 F. 158, 27 C. C. A. 136.) Likewise it was proper for such a witness to give his opinion, and the reason for it, that the driving of a mule in hauling cars in a mine would not give one experience in the actual operation of mining coal. An expert may testify concerning the dangers of a machine, what precautions are necessary to avoid them, and that before men are set to work they are carefully instructed in the use of the machine. (Biscuit Co. v. Rouss, 74 F. 608, 20 C. A. A. 555.)

Where one hires another to perform work which will expose him to danger known to the employer, but which the servant does not know, or, knowing in a general way, does not understand or appreciate by reason of his inexperience, it is the duty of the employer, if he has notice of such facts, to give such warning and instruction as is reasonably required to enable the one so employed, in the exercise of ordinary care, to understand and appreciate the danger and guard against it. (26 Cyc. 1165; White's Pers. Inj. in Mines, Secs. 392 456; 4 Thompson on Neg. Sec. 4055; 1 Labatt on Master & Servant, Sec. 235.) The question whether the danger is obvious and apparent must be considered with reference to the age, experience and capacity of the servant. (4 Thompson on Neg., Sec. 4061; 26 Cyc. 1176; Cudahy Pack. Co. v. Marcan, 45 C. C. A. 515; Maki v. Coal Co., 109 C. C. A. 221.) A servant does not assume any risk which he does not know, or knowing in a general way, does not understand or appreciate on account of inexperience. (26 Cyc. 1196; White's Per. Inj. in Mines, Secs. 179, 180, 182; Stewart v. Copper Co., (Mont.) 111 P. 723; Delbusso v. Am. &c. Co., (Mich.) 130 N.W....