Central Coal & Coke Co. v. Burns
| Decision Date | 13 October 1919 |
| Docket Number | (No. 133.) |
| Citation | 215 S.W. 265 |
| Court | Arkansas Supreme Court |
| Parties | CENTRAL COAL & COKE CO. v. BURNS. |
Appeal from Circuit Court, Sebastian County; Paul Little, Judge.
Action by J. W. Burns, administrator, against the Central Coal & Coke Company. Judgment for plaintiff, and defendant appeals. Affirmed.
James B. McDonough, of Ft. Smith, for appellant.
Ira D. Oglesby, of Ft. Smith, for appellee.
This is an appeal by a coal company from a judgment against it for damages for the negligent killing of a coal miner while at work in its mines. The principal issue raised by the appeal is that the court erred in not directing a verdict in favor of the defendant coal company.
Key Burns was employed as a coal digger in mine No. 4 of the Central Coal & Coke Company, of Hartford, Sebastian county, Ark., and was engaged in digging coal in room 46 on the morning he received the injuries which resulted in his death. The mine was the usual kind of a mine operated upon the room and pillar plan. A curtain was stretched across the entry for the purpose of ventilation. There was a track which led from the main track into the room where Key Burns worked. On the morning of the accident, Key Burns had filled a car with coal. In accordance with the custom he had called on the driver to take out the loaded car and place him an empty car in his room. The usual custom was that before the driver would go into the room to haul out the loaded car, he would push the empty car away from the room entry a sufficient distance, so that it would not interfere with the moving of the loaded car. It was the custom of the miner to assist the driver. They would push the loaded car out, and the empty car in afterwards, when they could do so. If they could not do this, the driver would hitch the mule to the cars and pull them out and in with it. Hugh Waters was the driver, and on the morning in question hitched his mule to the loaded car and pulled it out of the room. Waters and Burns had pushed the empty car beyond the curtain and beyond the switch point, leaving the empty car on the main line. This was done, so that the loaded car could be pulled out without striking or interfering with the empty car. Waters then hitched the mule to the loaded car and pulled it through the curtain, stopping out on the main line after it had been placed out a sufficient distance beyond the curtain. After stopping the loaded car east of the curtain, Waters unhitched the mule from the loaded car and drove it along in front of the empty car. At that time the west end of the empty car was at the curtain. Waters then hitched the mule to the empty car at the switch, and started to pull the empty car into the room where Key Burns worked.
At the time that Hugh Waters was unhitching the mule from the loaded car and driving the mule through the curtain, Key Burns was standing at the corner by the side of the car at the switch. Immediately after starting to pull the empty car into the room, and about the time the empty car had gone through the curtain, Waters heard Burns halloo or cry out. Waters turned the mule loose and immediately went back to where Key Burns was. He found Key Burns with his back and body pushed back on two electric wires, which were strung along there. The feet and head of Burns pointed south, and both wires touched his body. Waters first grabbed the leg of Burns to pull him off. He was shocked by electricity and turned Burns loose. He then grabbed Burns by the pant leg and pulled him off of the wires. Burns moved on his all fours and tried to talk and vomit, but could not do so. Burns was white as a sheet and would not say a word. Waters kept talking to him, trying to get him to speak, for about 10 or 15 minutes. Waters then placed Burns on a car and had taken him down the distance of about 28 rooms when he died. The rooms were about 30 feet apart. Burns was groaning all the time. Burns was standing right at the corner of the switch the last time that Waters saw him before the injury. In a few seconds thereafter Waters heard Burns halloo, and jumped off the front end of the car and ran around to where Burns was lying. There was both a dead wire and a live wire strung along there. The dead wire was next to the track and was about 10 or 12 inches from it. It was just nailed up to the props. The props are posts set in the ground and extending up to the roof of the mine for the purpose of supporting it. The live wire was back of the dead wire, and was about 7 or 8 inches from the dead wire. The two wires were parallel with each other, and were about the same height from the ground They were both nailed to the props and had no insulation. There was no plank or boxing to keep any one from coming into contact with the wire.
Another witness stated that the dead wire was about 15 inches from the track, and that it was about 3½ feet from the ground; that the live wire was about 10 inches further away from the track than the dead wire and that the wires were not insulated. The wires were strung along for the purpose of furnishing current to run the machines in the rooms. The dead and the live wires are really the positive and negative wires. The positive wires are the live wires and carry the current to the motor. The negative wire carries the current back to the ground or to the generator. The dead wire is the ground wire. It is connected permanently with the ground, and is the same as the ground. If one with his body touches the live wire and the dead wire at the same time, he will get a shock by electricity. Connecting the two wires makes the circuit. One will not receive any shock if he only touches the dead wire. The live wire in question carried from 225 to 250 volts of electricity.
In testing the sufficiency of the evidence to support the verdict, the testimony must be considered in the light most favorable to the plaintiff. Therefore it is unnecessary to abstract the evidence adduced by the defendant. It is sufficient to say that the evidence of the defendant tended to show that there was no negligence on its part, and that Key Burns was guilty of contributory negligence. While it was necessary for the electric wires to be strung along there for the purpose of furnishing electricity to run the machines in the various rooms where they were placed, the testimony for the plaintiff tends to show that they might have been insulated, or that a plank might have been nailed in front of them, so that the servants having occasion to work near them would not come in contact with the live wire. Hence the jury was warranted in finding that the defendant was guilty of negligence in the construction and maintenance of the wires.
It is earnestly insisted, however, that Key Burns was guilty of contributory negligence as a matter of law, and that the court erred in so refusing to instruct the jury. This we consider the most serious question in the case, but under all the circumstances adduced in evidence we believe that the court was right in submitting that question to the jury.
According to the evidence adduced by the plaintiff, it was the duty of Key Burns to assist the driver in getting the loaded car out of his work room and in placing the empty one in it. The dead wire was only 10 or 12 inches from the track, and the wires were 8 or 10 inches apart. This places the live wire from 18 to 22 inches from the track. The posts to which the wires were attached were in a narrow space between the gob and the track; the live wire being next to the gob.
The jury might have inferred that Key Burns stepped back next to the dead wire for the purpose of getting out of the way of the moving car, and that he stumbled or his foot slipped in some way, so that he fell back against the live wire, and in this way received the injuries which resulted in his death. There is nothing in the record...
To continue reading
Request your trial