Central Coal & Coke Co. v. Porter

• Decision Date: 15 February 1926
• Docket Number: (No. 180.)
• Citation: Central Coal & Coke Co. v. Porter, 280 S.W. 12, 170 Ark. 498 (Ark. 1926)
• Parties: CENTRAL COAL & COKE CO. v. PORTER.
• Court: Arkansas Supreme Court

280 S.W. 12

CENTRAL COAL & COKE CO. v. PORTER.

(No. 180.)

Supreme Court of Arkansas.

February 15, 1926.

Appeal from Circuit Court, Logan County; Jas. Cochran, Judge.

Action by Joe Porter individually and as administrator of Roland Porter, deceased, against the Central Coal & Coke Company. Judgment for plaintiff, and defendant appeals. Affirmed.

John W. Goolsby, of Hartford, for appellant.

Evans & Evans, of Booneville, for appellee.

HUMPHREYS, J.

Appellee brought suit against appellant in his own right and as administrator for the estate of his minor son for damages in the sum of $3,000 on account of the death of his son caused through the alleged negligence of appellant in maintaining an attractive nuisance on its premises. Appellant denied the material allegations in the complaint and interposed the further defenses of assumed risk and contributory negligence on the part of the deceased. The cause was submitted to a jury upon the pleadings, the testimony adduced by each party, and the instructions of the court, which resulted in a verdict and judgment in favor of appellee for $3,000, from which is this appeal.

The facts are practically undisputed except as to whether or not the deceased was in the employment of appellant at the time of his death. Appellant is the owner of a large number of coal mines and owned and operated a large mine near Huntington in Sebastian county, known as mine No. 6. on account of the size of the mine and the accumulation of gas in same, the state mine inspector required appellant to dig an air shaft about one-half mile from the tipple, or main entrance, to secure proper ventilation and to provide an additional entrance and exit for the miners. The air shaft or man shaft dug pursuant to the order was 8 feet square and 180 feet deep. One-half of the space in the shaft was occupied by a stairway running from the top to the bottom of the shaft. This shaft was made safe for the miners to ascend and descend with slats and rails. The other part of the shaft was left open. A plank wall was built around the shaft with a roof over it. A floor was laid inside the wall over the mouth of the shaft, an opening being left for entry to the stairway. The wall had a door in it to accommodate the miners, which was constructed so that it would swing to or close when any one passed through it. To more actually visualize the situation, it may be said that the air shaft had a small house over it, which could be entered through a door that would shut of its own accord when one passed through it. The air shaft was located upon a large tract of land, either an 80 or 160 acre tract, which was used by appellant for a mule pasture. The tract of land had a good fence around it with stiles and gates provided for the use of any one who desired to go through the pasture to the mine, the post office, or other places in the neighborhood. The shaft was near the center of this tract of land and was dug in a pathway which had been made by persons passing through the tract. When the house was constructed over the shaft, the pathway was changed so as to run around it. The shaft house could not be seen by any one standing outside the fence inclosing the land on account of the underbrush and growing trees upon it. Quite a lot of acreage near the shaft and small house was covered with a blackberry thicket. The people in that vicinity had picked blackberries upon the land for many years without objection or hindrance by appellant. On April 1, 1922, the mine was shut down on account of a strike and was not operated for several months. During this period the door to the small house over the shaft was propped open and remained in that condition until after the death of appellee's son. While the mine was shut down, watchmen or caretakers were employed by the superintendent to look after it. They were stationed at the tipple, or main entrance of the mine. Appellee was employed as one of the watchmen or caretakers. These caretakers worked in shifts of eight hours each. Appellee testified that on several occasions he had to go away from home, and when it became necessary for him to do so he would leave his son in care of the mine as watchman or caretaker; that he went to Fort Smith on one occasion, and the superintendent made no objection when he told him he had left his son in his place. Testimony was also introduced by appellee showing that other watchmen or caretakers had done the same thing when it was necessary for them to be absent. On the 25th day of June, 1922, appellee had to go away, and he left his son, Roland Porter, in charge of said mine. Roland was in his eighteenth year and competent to perform the duties of watchman. The superintendent came by and spent a part of the morning with him and made no objection to his being there. Later in the day he departed, leaving the boy in charge. After the mine was shut down, the air intake was shut off by water, and poisonous gases of a deadly nature were formed, which found their way to the airshaft in the woodland about one-half mile from the tipple, or main entrance.

On that day Yancy Roberts, a boy 10 years of age, and a number of other children younger that he, were picking blackberries near the entrance of the shaft. They were attracted to the house over the shaft, and Yancy entered the door in the wall and sat down upon the floor at the head of the stairway. In a few minutes he was overcome by the poisonous gases and fell down the stairway, lodging on one of the landings, where he subsequently died from the effects of the fumes. His screams attracted the attention of the other children, who attempted to rescue him, but were overcome and fell down the stairway into the shaft. After four children had fallen down the stairway a considerable distance, John Roberts and Bob Dunlap appeared upon the scene and attempted to rescue the children. Although strong and able-bodied, they were overcome with the gases also. Roland Porter received information that these people had fallen into the shaft and hurried to their assistance. When he arrived, two of the children were hallooing, and one of the little girls was hanging over the stairway into the opening of the airshaft and was about to fall to the botton thereof. Bob Dunlap was nearest the top, having descended two flights of steps. Roland immediately descended into the shaft and succeeded in pulling Bob Dunlap to the surface. After walking around for a while and freeing his lungs from the gas, he decided to go down and pull the little Robertson girl, whose body was hanging over the edge of the stairway, back toward the wall in order to prevent her from falling to the bottom of the air shaft. She was lying quite a distance down the...