Carney Coal Company v. Benedict

• Decision Date: 16 May 1914
• Docket Number: 720
• Citation: 22 Wyo. 362,140 P. 1013
• Parties: CARNEY COAL COMPANY v. BENEDICT
• Court: Wyoming Supreme Court

140 P. 1013

22 Wyo. 362

CARNEY COAL COMPANY v. BENEDICT

No. 720

Supreme Court of Wyoming

May 16, 1914

Rehearing Denied November 24, 1914, Reported at: 22 Wyo. 362 at 380.

ERROR to the District Court, Sheridan County; HON. CARROLL H PARMELEE, Judge. On Rehearing. For former opinion, see 21 Wyo. 163, 129 P. 1024.

The facts will be found stated in the former opinion reported in 21 Wyo. 163, and in that report of the case will be found an abstract of the briefs on the original hearing.

Judgment affirmed.

POTTER JUSTICE. SCOTT, C. J., concurs. BEARD, J., dissenting.

OPINION

POTTER, JUSTICE.

This case has been heard in this court a second time, a rehearing having been granted because of doubt as to the correctness of the previous decision to the effect that the failure of the defendant company to properly warn and instruct the plaintiff was not shown to be the proximate cause of his injury, and that the District Court, for that reason, erred in not giving, as requested, a peremptory instruction to find for the defendant. Because of that error, as it then appeared to the court, the judgment in favor of the plaintiff was reversed and the cause remanded for further proceedings. (See Carney Coal Company v. Benedict, 129 P. 1024, (21 Wyo. 163). The conclusion that the failure of the company to warn the plaintiff was not shown to be the proximate cause of his injury was based upon our view at that time of the evidence that the danger was obvious. A re-examination of the question has led to a different conclusion. The court is now of the opinion that the question whether the danger was obvious and was appreciated or should have been appreciated by the plaintiff was, upon the evidence, a question of fact for the jury, and was properly submitted to the jury by the trial court.

There was evidence tending to show that the one who hired and discharged the miners and directed them in their work was informed by both the plaintiff and his father that the plaintiff was without experience in mining coal, and that they were promised that the plaintiff would be put to work with an experienced miner. There was also evidence tending to show that the plaintiff was inexperienced, although there was a conflict in the evidence in this respect; the conflict arising from the fact that the plaintiff had worked in a coal mine in certain capacities, and it was claimed that because of his former work in a coal mine he was not to be regarded as an inexperienced coal miner. The evidence upon that question, however, was properly submitted to the jury, and by their verdict they must have found that the plaintiff was inexperienced; and they must also have found that the company knew of such inexperience and had failed to give him the necessary warning and caution, as alleged in his petition.

The failure of the company to instruct the plaintiff in what is known as the sounding test, to be used in discovering the danger of falling coal, was particularly relied on as the proximate cause of the injury. The jury were justified in finding that the plaintiff knew nothing of the sounding test and that he used such limited knowledge as he had to determine whether the projecting lump of coal was sufficiently solid to render it safe to continue at work at the place where it subsequently fell. The evidence tended to show that an experienced miner would have used and ordinarily would have detected the danger by the use of what is known as the sounding test. Several experienced miners called as witnesses described that test and the circumstances and occasions for its use, among others a witness from whose testimony we quote for the purpose of showing the general character of the evidence on this point produced by the plaintiff below: "Q. I will ask you what tests are employed by an experienced miner, by yourself as an experienced miner and others of experience, in detecting and discovering dangers of falling coal? A. The first test is by means of sound. Q. Explain to the jury what that test is and how it is made. A. It is a common thing with practical miners in going in their rooms or working place to have a pick with them and test the roof and face of the coal and some times the 'rubs' or sides, to see if it sounds firm and solid, or loose and liable to come in. Q. Now, as to that test, what if any experience is required to apply it? A. A man that was not used to that kind of work would not know. Q. You may explain what if any experience is required on the part of the miner to apply this test of sound you speak of? A. It requires that a man would work in the mine with a practical miner in order to get this experience. Q. How is that experience acquired? What manner? A. Well, in the first place, if a practical miner would take a green man, knowing he was not used to this work, he would naturally show him the difference in sound of the different places that were safe and unsafe in the mine. Q. I will ask you whether or not that is the best test known to miners to discover the danger of the liability of coal to fall? A. It is. Q. What other tests, if any, are applied? A. There is another test where you are testing rock in a mine, and that is putting your hand on the rock while sounding it. Other tests are by using a bar or wedges. If you cannot pry them loose or wedge them loose a practical miner would consider them safe. Q. In your experience I will ask you whether or not in the case where there is a projecting body of coal in the corner of the room projecting some distance and about which there is a slight crack, or a crack, and you use a tamping bar, a miner uses a tamping bar and tries to pry it down and it fails to come down, I will ask you whether or not that would indicate safety, if a miner would know the danger of that coal falling? A. It does not necessarily indicate that there is danger to the man, or that there is not danger. Q. Explain that, Mr. Conoval. A. Some times, as I understand, the projecting piece of coal that hangs out in a working place there may be a check behind it, there may be just a wedge of coal holding it, or it may be setting firm on the bottom and the check going clear to the bottom and different things. It would be owing to the condition it hung, the condition of the check to say whether it would be dangerous to the man operating under it. If the check didn't go to the bottom; if there was just a small piece of coal, that a practical miner would find there, that held it, it would naturally show there was danger, and a practical miner would cut that and let it down. Q. Now I will ask you whether or not where real danger exists from a projecting lump of coal, whether that danger is generally detected or discovered by the sounding method you speak of? A. Yes, as a rule. Q. I will ask you whether or not it requires experience to apply that test? A. I would say it did. Q. Now I want to inquire of you in regard to appearances in a room where a miner is at work, whether the danger is usually apparent to the eye? A. To a practical miner as a rule it is. Q. But one without any experience? A. It would not be. Q. What would you say as to whether or not it is necessary to have experience to discern dangers from appearances? A. It would be necessary to have experience." The evidence on the question was conflicting, and, as we are now convinced, was properly submitted to the jury.

While the rule is well settled that a master is not required to give warning of visible and obvious dangers to a servant possessing the intelligence, understanding, and experience sufficient to comprehend and appreciate them, it is equally well settled that if the servant is employed to do work of a dangerous character or in a dangerous place, and he is not experienced, but because of his inexperience may fail to appreciate the danger, it is the duty of the master before exposing the servant to such danger to give him such instructions or cautions as will enable him to comprehend them, and do his work safely with proper care on his part. (Covelli v. Cooper Underwear Co., 151 Wis. 130, 138 N.W. 40). In personal injury actions, whether the defendant has been negligent as alleged, or whether plaintiff has been guilty of contributory negligence, are, as has often been said, peculiarly questions of fact to be submitted to the jury "unless the testimony is without conflict and is of such character as to afford no opportunity for fair minded men to differ upon the conclusion to be reached thereon." (Sidwell v. Economy Coal Co., (Ia.) 130 N.W. 729). And, generally, whether or not a servant assumed the risk is a question of fact for the jury, and a court is not authorized to say as a matter of law that the danger was obvious unless it is shown by the evidence without conflict that an ordinarily prudent man or one with the experience of the injured servant ought to have noticed it. (Healey v. Perkins Mach. Co., 216 Mass. 75, 102 N.E 944; Covelli v. Cooper Underwear Co., supra; U. P. Ry. Co. v. Jarvi, 53 F. 65, 3 C.C.A. 433; Gallagher v. Lehberger, 84 N.J.L. 712, 87 A. 450; Braddich v. Phillips Coal Co., (Ia.) 138 N.W. 406; Alton Paving Co. v. Hudson, 176 Ill. 270, 52 N.E. 256; Hosking v. Cleveland Iron Min. Co., 163 Mich. 538, 128 N.W. 777; Sidwell v. Economy Coal Co., supra; Bouthet v. International Paper Co., 75 N.H. 581, 78 A. 650; Tenn. Copper Co. v. Gaddy, 207 F. 297, 125 C.C.A. 41; W. U. Tel. Co. v. Burgess, 108 F. 26, 47 C. C.A. 168; Anderson v. Daly Min. Co., 15 Utah 22, 49 P. 126; N. Y. Biscuit Co. v. Rouss, 74 F. 608, 20 C.C.A. 555; Hanley v. California Br. & Constr. Co., 127 Cal. 232, 59 P. 577, 47 L. R. A. 597; Carnego v. Crescent Coal Co., (Ia.) 143 N.W. 550; Booth v. Stokes, 241 Pa. 349, 88 A. 490; Collins v. Northern Anthracite Coal Co., 241 Pa. 55, 88 A. 75; Hanson...