Cecil v. American Sheet Steel Co.

• Citation: 129 F. 542
• Decision Date: 05 May 1904
• Docket Number: 1,231.
• Parties: CECIL v. AMERICAN SHEET STEEL CO.
• Court: U.S. Court of Appeals — Sixth Circuit

129 F. 542

CECIL v. AMERICAN SHEET STEEL CO.

No. 1,231.

United States Court of Appeals, Sixth Circuit.

May 5, 1904

This suit was instituted in the court of common pleas for Tuscarawas county, Ohio, to recover damages for a personal injury suffered by plaintiff in error while in the employment of the defendant in error as a coal miner. The action was removed into the Circuit Court of the United States for the Eastern Division of the Northern District of Ohio, held at Cleveland. On the trial of the case, and when all the evidence was in, the court, on motion, directed a verdict for defendant, on which judgment was entered. Exceptions were duly taken, and, to revise the judgment, the case is brought to this court on writ of error.

The work in which the plaintiff was engaged at the time of the accident which caused the injury was that of removing or mining pillars of coal left in branch or side entries to the main entry of what is called a 'drift mine' belonging to defendant. As side entries were made or driven, in the progress of the work, large pillars or blocks of coal were left to support the slate or soapstone roof of the entries left by mining and removing the coal on all sides of these pillars. When finally these entries were extended as far as the coal justified, and it was determined to abandon them the pillars of coal were mined and removed. The plaintiff was engaged in mining one of these pillars, and had been engaged in that particular work for two weeks. While doing this work it was the miner's duty to prop and support the roof of stone or slate by timber posts placed in an upright position with a cap piece fixed against the roof. These posts were about 4 inches in diameter, with caps 6 inches wide, 18 inches long, and about 1 1/2 inches thick. These timbers were sent to the miners in the entries, and each miner did his own propping. The miner was furnished with the usual miner's lamp, of about three candle power. On the day of the accident, plaintiff had, on going into the mine, examined or 'sounded' the roof in the usual way, and placed conveniently close by the master. After proceeding two hours or more with the work, a piece or slip of stone fell from the roof above, where the mining had just been done, striking plaintiff, and inflicting serious injury. This slip or block of stone weighed about 500 pounds, was 3 feet long, 8 inches wide, and 8 inches thick in the middle, from which it sloped towards the ends, at which it was wedge-shaped.

The plaintiff's case is stated in the petition as follows:

'That, as a part of his duties as such coal miner, he was required to, and did, perform the work of taking out pillars or posts of coal between rooms in said coal mine; and he was also required to keep the roof of said coal mine, at or near where he was working, propped with posts, or timbers and caps, so that said roof would not fall in, thereby endangering the life or limbs of himself or other employes of the defendant.

'Plaintiff further says that it was the duty of the defendant at all times to furnish plaintiff, at his working place in said coal mine, with good, sound, and substantial timbers and caps, with which to keep said roof propped in a safe and sufficient manner, but the defendant, disregarding its said duties in the premises, at the time hereinafter stated, wrongfully, carelessly, and negligently failed to furnish plaintiff with good, sound, substantial timbers and caps, as it was bound to do, and avers that one of the caps furnished by the defendant to plaintiff, to be used in propping the roof at or near where plaintiff was working in said mine, and so used by the plaintiff, was unsound, rotten, and defective, and wholly unfit for the purposes for which the same was intended, as defendant well knew.

'Plaintiff further avers that on or about the 11th day of November, 1901, while so engaged as a coal miner in said defendant's said mine, said rotten and defective cap broke and gave way, and caused the roof of said coal mine, at and near where plaintiff was at the time working, to fall in, by reason whereof a large stone, with slate, etc., fell on plaintiff, striking plaintiff on his back, and on the spinal column thereof, fracturing the vertebra of plaintiff's spinal column, by reason whereof plaintiff's spinal column and nervous system has been permanently injured, and plaintiff has ever since been sick, lame, and diseased.

'Plaintiff avers that said injuries were caused without any fault or neglect on his part, but wholly on account of the carelessness and negligence of the defendant; that plaintiff had no knowledge whatever that said cap was unsound or defective or rotten; that he used all the timbers and caps furnished him at the time by the defendant to prop said roof; and that, before using the same, he used ordinary care to determine whether the same was sound and fit for the purpose intended.'

There was evidence to show that the posts and caps were properly set, in the usual way. About four or five inches of one end of the stone slip which fell rested on the end of the post cap, as appeared by the opening in the roof left by the falling stone. The evidence tended to show that the piece of the cap which broke off was five or six inches long, and was defective, 'by being wormy.' and was somewhat decayed from exposure to weather, or, as the witnesses say, was 'brash wood,' and was partly rotten. The break in the cap was a square break across the grain.

The view of the learned judge below appears in the peremptory instruction to the jury, which, taken from the record, is as follows:

'It must be shown, as a part of the plaintiff's case on this theory, that this rock would not have fallen, except for the rottenness of this cap. Now, that is not shown. It is guessed at. It is surmised. But there is the evidence that it was supported by the coal under it, and that, when the coal was removed, it fell, and that it was of certain dimensions and weight. It would be extremely improbable that a board four inches long was destined to support a 500-pound stone of those dimensions. And under the consideration of the testimony, that there is an insufficient amount to show that the condition of the board that broke was the proximate cause of this accident, I cannot escape from the first conclusion that I came to-- that it is not shown in such a way but what the court will be bound to set aside a verdict, if the jury said that was the occasion of the accident. And therefore a verdict is directed for the defendant.'

Section 6871 of the Revised Statutes of Ohio of 1892, cited as having a material bearing on the case, is as follows:

'The owner, agent or operator of every coal mine shall keep a supply of timber constantly on hand and shall deliver the same to the working place of the miner and no miner shall be held responsible for accidents which may occur in the mine where the provisions of this section have not been complied with by the owner, agent or operator thereof.'

Foran, McTighe & Gage and T. H. Loller, for plaintiff in error.

E. K. Wilcox, for defendant in error.

Before LURTON and RICHARD, Circuit Judges, and CLARK, District Judge.

CLARK District Judge, after making the foregoing statement, .

After this somewhat full statement of the case, it does not seem to require extended discussion. It is very clear that this statute imposes on the owner or operator of a coal mine the duty to keep constantly on hand a sufficient supply of timber, without undertaking to declare or define the degree of care which the mine owner or operator must exercise in that regard. The degree of care, therefore, which must be exercised, is left to be determined...